1726782 (Refugee)

1726782 (Refugee) [2021] AATA 4056 (10 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1726782
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:10 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 August 2021 at 1:47pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Christian convert – threats of harm by Taliban followers – did not attend hearing – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 25 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The [applicant] is a citizen of Pakistan. He entered Australia [in] August 2016 on a three-month visitor visa. He lodged a protection visa application on 13 September 2016. His claims related to consorting with Christians, converting from Islam to Christianity and the taboo of apostasy. The delegate refused to grant the visa on credibility grounds. [The applicant] then sought merits review by this Tribunal. He is represented. The matter was constituted to me.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision in this matter. That document contains a summary of the evidence provided by [the applicant] and the issues raised by the delegate.
The Tribunal invited [the applicant] to attend an oral hearing of his claims on 3 June 2021. [The applicant] accepted the invitation and nominated two intended witnesses who would accompany him to the hearing. Pre-hearing submissions were received on 16 and 27 May 2021. The two witnesses also submitted written statements, claiming to be members of a church that [the applicant] claimed to attend in Sydney. There was also a third witness statement from a staff member of [Charity 1] in [Suburb 1] NSW.
However, on the day of the scheduled hearing, [the applicant]’s adviser contacted the Tribunal to say that he, [the applicant], was suffering from severe abdominal pain but would not be attending the hearing. The Tribunal requested more information including a medical report, but received only a short doctor’s note saying that [the applicant] would not be able to give evidence on 3 June 2021 but was expected to be able to do so from 7 June 2021 onwards.
The adviser contacted the Tribunal again on 3 June 2021 saying that she would “not be able to attend any hearings from the 9th of June to the 20th due to my upcoming surgery.” She asked that [the applicant]’s hearing be postponed until after 20 June 2021. She submitted a medical certificate, but it was the same one as the Tribunal had already received pertaining to [the applicant]’s request for a postponement until at least after 20 June 2021.
Having regard to all of the above, including the confusing message from the adviser about her own condition, the Tribunal re-scheduled the hearing to commence at 10:30am on Wednesday, 16 June 2021.
The Tribunal then received an email from the applicant’s adviser on 10 June 2021. It is not apparent from the date and content of this email that the adviser was undergoing or recovering from surgery. In this email, the adviser told the Tribunal that [the applicant] was experiencing “severe mental pressure.” The adviser asked that the hearing be postponed indefinitely pending to [the applicant] seeking advice from a psychologist.
I considered this request mindful of the Tribunal’s own published guidelines relating to vulnerable persons. I also looked for any evidence of [the applicant] having suffered a history of potentially significant mental issues. Up to 10 June 2021, [the applicant] had provided no evidence of potentially significant psychological issues, or of consultation with any mental health professionals. There was only one instance of abdominal pain. Meanwhile, the adviser was evidently still at work. I also this considered that this application is already five years old and needs to be dealt with fairly but also without undue delay. I advised [the applicant] that I expected the hearing to commence on 16 June 2021 at the scheduled time. He would also have been welcome to present his witnesses on that day.
On Tuesday, 15 June 2021, the Tribunal received a further request for postponement this time with an explanatory letter from [the applicant]’s consulting GP, advising that [the applicant] had been referred to a psychologist for treatment of acute anxiety and asking for a six- to eight-week hearing postponement. In the circumstances, I agreed to postpone the hearing.
The Tribunal received an email communication from [the applicant]’s adviser on 30 June 2021, attached to which was a 29 June 2021 letter from a clinical psychologist, saying that [the applicant] had “attended [Psychology Clinic 1] on24/6/21 and 29/6/21. [The applicant] presents with symptoms that appear consistent with Adjustment Disorder with Mixed Anxiety and Depressed Mood in the context of separation from his family.” The psychologist went on to say, “Due to his anxiety symptoms, I believe that [the applicant] would not be capable at the present time to manage the stress of an interview with the Immigration Department.”
The request for a hearing postponement, implicit in the psychologist’s letter, appeared somewhat indefinite. The Tribunal received no further information about whether [the applicant] was receiving any treatment at all for the conditions cited in the psychologist’s letter.
On 4 August 2021, the Tribunal sent a new invitation to [the applicant], inviting him to an in-person hearing before it on 3 September 2021, the expectation being that the July-August 2021 Covid-19 lockdown in Sydney would have been lifted by then, as indicated in the interim by NSW Health.
On 6 August 2021, the Tribunal received a letter from [the applicant]’s adviser, stating that she no longer represented [the applicant].
On 6 August 2021, the Tribunal received the following email message from [the applicant] himself:
I am under so much pressure, both mentally and financially.
I could not pay my legal fees; therefore, I no longer have a representative to defend me.
Mentally I am going through so much anxiety and stress every day.
Please understand and consider my mental health situation.
On 9 August 2021, the Tribunal received a further communication comprising another short letter from the same psychologist who wrote on 29 June 2021 and a formal “Response to Hearing Invitation” from [the applicant] himself. The psychologist basically repeated the same brief statement previously provided, with no details as to any progress made or not made:
[Applicant name] (DOB: [date]) is currently attending [Psychology Clinic 1]. [The applicant] presents with symptoms that appear consistent with Adjustment Disorder with Mixed Anxiety and Depressed Mood in the context of separation from his family.
Due to his anxiety symptoms, I believe that [the applicant] would not be capable at the present time to manage the stress of an interview with the Immigration Department.
Again, this quite bare advice from the psychologist appeared congruous with a vague request for an open-ended postponement of the scheduled hearing.
[The applicant]’s own message, however, seemed less nebulous: in his “Response to Hearing Invitation,” he asked that the Tribunal proceed immediately to a decision on the material already available to it. He asked the Tribunal to take no further steps to invite him to appear before it.
I have weighed all the information before me that relates to [the applicant] being available or unavailable to attend a Tribunal hearing. In particular, I have considered whether factors and circumstances beyond his control have negatively affected his capacity to make an informed decision to forego a hearing: he has, after all, said that he has been under substantial mental and financial stress, and that position is broadly supported by a health professional. On balance, I am not satisfied that [the applicant] has been prevented by factors or circumstances beyond his control from making a rational decision to ask for this matter to be reviewed on the papers.
The Tribunal must not unduly delay this review, and after postponing the hearing of this matter on two previous occasions, I do not consider it appropriate or helpful to postpone this review indefinitely. At the same time, it would not be reasonable for the Tribunal to try to coerce an applicant to attend a hearing. All the Tribunal can do is clearly state the potential implications of declining a hearing invitation, which it has done in this case. I have duly considered whether I could conduct further investigations through written correspondence with [the applicant], and discuss below the reasons why I have considered this not to be appropriate in a number of circumstances.
Upon due consideration, I have decided to proceed to a decision on the material hitherto submitted by the applicant and will not further invite him to appear.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the former Immigration Department (the Department)
In his original protection visa application, [the applicant] claimed to be a married Sunni Muslim businessman from Sialkot in the province of Punjab. He claimed to have lived at one address in [District 1] of Sialkot from [year], the year of his birth, until 1997. He claimed he moved to another address in the same district in 1997 and stayed there until 2004. He claimed he then lived at a specified address in [another] district of Sialkot from 2004 until the time he came to Australia.
[The applicant] claimed he worked for the same company in [District 1], Sialkot, from 2001 until the time he left for Australia. He claimed he had completed his secondary education in Pakistan in [year].
[The applicant] claimed he was in contact with his family in Pakistan on an almost daily basis. He indicated that family in Pakistan included his wife, father, mother, [children] and [brothers], all living at the same address in [District 1] where he had resided from 1997 to 2004. He claimed to have a married sister who was living away from Punjab in Rawalpindi.
[The applicant] claimed he left Pakistan when he did to display his business’s [Product 1] products at a “[Product 1] expo” in Australia. He indicated that he intended to be in Australia only temporarily. He claimed that after he arrived in Australia he discovered that his circumstances back in Pakistan had taken a turn for the worst.
[The applicant] claimed that there were people in Pakistan who thought he had converted from Islam to Christianity. He said that the law treats actual and imputed Christian converts harshly. He said that the traditional punishment under Islam is the death penalty.
[The applicant] claimed that three years before he came to Australia he made friends with a Christian Pakistani called [Mr A]. He said that [Mr A]’s good values inspired him to visit [Mr A]’s church from time to time. He said that in May 2016 some people came to know that he was attending [Mr A]’s church. He claimed that two residents of [District 1], [Mr B] and [Mr C] started threatening him over his visits to the Christian church, specifically threatening to kill him if he did not stop going. He claimed they threatened to use their connections with the Pakistani Taliban, or TTP.
[The applicant] claimed he did not stop attending the Christian church. He said [Mr B] and [Mr C] used to chase him, intending to harm him, although he had always managed to escape. Notwithstanding this, he indicated that he came to Australia with the intention originally of staying only temporarily: as noted, he claimed that he was seeking protection here because of events subsequent to his arrival here in August 2016.
[The applicant] claimed that [Mr B] and [Mr C] made a more final threat to him in late May 2016. He claimed he stopped going to church and reported the threats and harassment he had received from [Mr B] and [Mr C] to the police in June 2016. He claimed that the police, saying they were all Muslims, were not interested in helping a man who was attending a Christian church. He said they showed their hatred towards him by not investigating his claims against [Mr B] and [Mr C].
Without going into any detail as to why he did so in the claimed circumstances, [the applicant] claimed he resumed attending church in August 2016, going there three times.
[The applicant] claimed that after he arrived in Australia in August 2016, [Mr B] and [Mr C] and their Taliban companions started visiting his family home (evidently in [District 1]) threatening the lives of his parents and threatening to burn down the family home if they could not find him. He claimed his brother reported these later threats to the police without any action in response.
[The applicant] claimed that he will be killed in the event of return or removal to Pakistan. He acknowledged that national law does not apply the death penalty in cases of apostasy although Shari’a law does, meaning that he would be theoretically under a death sentence if he returned there. He claimed he and his family would not be able to relocate to another part of Pakistan because the TTP has strong networks. He claimed the police will not protect him because they hate Christians and apostates.
[The applicant] submitted some news reports about the treatment of two individuals, one a governor of Punjab who spoke in defence of a Christian woman accused of blasphemy who was assassinated in 2011 by his own security guard, and the other a convert to Christianity who was murdered in jail in 1992. [The applicant] also submitted evidence of his marriage in 2014.
[The applicant] submitted photocopies of various forms of ID, along with four statements in support of his claims:
·     A 2016 statement from the pastor a Presbyterian church in [a named] district asserting that [the applicant] attended “the Church meeting prayers”;
·     A purported affidavit by [Mr A] declaring that [the applicant] had been attending “the Church meeting prayers” with him, with the result that some Muslims were searching for him, [the applicant], and threatening to harm his family;
·     A purported hand-signed report to police in English, dated 1 June 2016, purportedly made by [the applicant], asserting that he had been in the habit of attending church with [Mr A], with the effect that [Mr B] and [Mr C] had begun harassing him (having chased him three times), pressuring him to stop attending church, blackmailing him and threatening to kill him if he did not stop consorting with Christians; and
·     A purported hand-signed report to police in English, dated 5 September 2016, purportedly made by [the applicant]’s brother, asserting that [the applicant] attended church with [Mr A] and that [Mr B] and [Mr C] threatened to kill his and [the applicant]’s parents and threatening to burn their home if they did not leave their village, with the effect that the whole family was now in danger.
At his April 2017 interview with the delegate, [the applicant] evidently claimed to have attended church in Pakistan a total of three times. This information appears not to have been consistent with his original claims about having attended multiple times up to June 2016 and then three more times in August 2016. [The applicant] claimed he had started attending a church in Australia, by then purporting to consider himself a Christian, but he was evidently unable to substantiate this new claim. The delegate’s decision was finalised on 25 October 2017.
Submissions to the Tribunal

[The applicant] submitted four documents to the Tribunal:
·     a 30 May 2018 submission with arguments from his adviser;
·     a further statement of claims, dated 30 May 2018;
·     a translated photocopy of a certificate of divorce, indicating that [the applicant] was previously married to another woman, before marrying his current wife, the previous marriage having been dissolved under Pakistani law in June 2013;
·     a certificate declaring that [the applicant] was baptised in a Catholic church in [Suburb 1] NSW on 16 September 2017; and
·     a photograph described as depicting [the applicant] attending Bible study at [an Anglican church] in Sydney.
I note that, according to the baptism certificate, [the applicant] was baptised several months after his interview with the delegate. The church in which he was baptised being a Catholic church was not the church, an Anglican one, in which he was purportedly undertaking Bible study.
[The applicant]’s adviser submitted that [the applicant] was previously married before divorcing in 2013 and marrying his current wife in 2014. He said [the applicant] was a practicing Muslim who met [Mr A] in 2013, about three years before he, [the applicant], came to Australia. He said [Mr A] was [the applicant]’s employee: a [technician] of [Product 1] instruments. He said that [Mr A]’s character and values impressed [the applicant].
The submission states that [the applicant] travelled to [Country 1] on business in 2013. His passport shows that he was in [Country 1] in March 2013, three months before his divorce was finalised. [The applicant] claimed he visited [Cathedral 1] on two occasions while he was in [Country 1], feeling a “holiness” when he was inside. (This does not come as a surprise: in a good year, [Cathedral 1], widely reputed for its grand and soaring gothic vaults,[1] attracts tens of thousands of visitors.) Through his adviser, [the applicant] claimed that the visit to [Cathedral 1] inspired him, after his return to Pakistan, to continue to “monitor” [Mr A]’s behaviour as a Christian.
[1] [Source deleted]
[The applicant] here introduced a new claim: that he and his first wife divorced in June 2013 over a dispute about his interest in Christianity and the raising of their child. He claimed his second wife, who he married in 2014, was much more open-minded about his religion. However, according to his evidence, he was still only “monitoring” [Mr A] all this time.
[The applicant] claimed that around three years later, in April 2016, he decided to attend [Mr A]’s church. By this stage, [the applicant] had already been divorced from his first wife for almost three years. He claimed he took care to cover his face with a shawl during this and other church visits. his church attendance nevertheless came to the attention of “some persons affiliated with extremist groups” in May 2016. He identified these people as [Mr B] a [Mr C].
[The applicant] claimed he abstained from attending church but, in what appeared to be another new claim, engaged in reading the Bible. He said that in August 2016 he attended church three times, once for a wedding and twice for prayers.
[The applicant] claimed that he stopped receiving threats in the months before he came Australia and that he therefore only intended to visit here long enough to attend the “[Product 1] expo” [during] August 2016. He claimed, however, that Messrs [B] and [C] somehow heard of his August 2016 church visits and threatened his family with violence and arson unless he was handed over to them. He claimed they told his family to move to another village “as punishment.” He said his brother reported this to the police but to no avail. He said that he lodged his protection visa application as a result.
The 30 May 2018 submission says that [the applicant] formally converted to Christianity in Australia, that his new wife accepts his conversion and that his parents disagree with it. The submission goes on to repudiate the conduct of the delegate’s interview and rebut the delegate’s observations and findings, in some instances drawing my attention to particular stages of the interview’s electronic record.
Specifically, [the applicant] expressed concern about not being told, when he asked the delegate, whether his interpreter was Muslim or non-Muslim, causing him to be reticent to discuss his claims in detail or, when discussing them in English, to have difficulty doing so. [The applicant] also took exception to the delegate having asked him why he did not tell his parish priest that he was applying for a protection visa. [The applicant] claimed that at no time during the interview did the delegate “probe” him about growing up as a Muslim, about his “change of heart” regarding Islam, about what kind of church meetings he attended in Pakistan, about what made him interested in Christianity in the first place (although he had already explained this, albeit broadly, in his original application, referring to [Mr A]’s personal attributes) and whether he disclosed his conversion to his family or anyone else in Pakistan (although, again, he had indicated that his family knew or heard of his church attendance and that his brother, for one, had arguably acted in support of him). Noting this submission, I also note that a decision maker does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims.
[The applicant] claimed in the submission that the delegate did not want him to discuss the “church” in [Country 1] or its significance to him. He also details instances in which the delegate cut him off from saying what he wanted to say. Further, he takes exception to the way the delegate appeared to present country information that might have thrown doubt on his survived so long in Pakistan merely being warned against engaging with Christianity the way he claimed to have done. Essentially, the submission accuses the delegate of bias.
All of this is noted, and the present review of [the applicant]’s case is de novo.
[The applicant], in his own 30 May 2028 statement, commented on the issues raised in the submission. After alleging bias on the part of the delegate, he went on to provide “Further information” regarding his claimed conversion to Christianity. He said he grew up “brainwashed” to be good Muslim. He claimed he met [Mr A] in 2013. He said that during the three years of their acquaintance, he and [Mr A] talked about “Jesus, Mohammad, God and salvation.” He said [Mr A] used to talk about the Bible and the miracles, while he talked about the Koran. [The applicant] also spoke directly about the feeling of “holiness” whilst visiting [Cathedral 1] and about having “carefully monitored” [Mr A]’s behaviour over the next three years or so after returning to Pakistan. It is clear from reading [the applicant]’s statement that the adviser’s submission derives directly from it.
[The applicant] described having attended church in April and May 2016 and also three times in early August 2016 before coming to Australia. He described Messrs. [B] and [C] threatening him in May 2016 and his reporting the threats to the police in June 2016. He also described [Mr B] and [Mr C] threatening his wife and his parents in August 2016, after his arrival in Australia.
[The applicant] described his having become a baptised Catholic in Australia.
The witness statements
The first of [the applicant]’s three witnesses is a woman [Witness D] who claims to have known him at the [Catholic Church 1] in [Suburb 1] NSW “since 2017.” The witness refers to [the applicant] having described his problems back in Pakistan and his missing his family.
The second of [the applicant]’s three witnesses is a woman [Witness E] who also claims to have known him at [Church 1] “since 2017.” This witness also refers to [the applicant] having described his problems back in Pakistan and talks about his missing his family.
The third of [the applicant]’s three witnesses is a woman [Witness F] who claims to have known him at the [Suburb 1] branch of [Charity 1] “since 2017” as a volunteer and regular attendee of branch meetings.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[5] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] in a Pakistani national from Punjab. I accept that he was raised in the Muslim faith and traditions in Pakistan. I accept that he underwent baptism in the Catholic church at [Suburb 1] in September 2017.
There are, however, several aspects of [the applicant]’s case that I needed to explore with him in an oral hearing. One of these was how and why he would have felt safe enough to declare to local police his involvement with a Christian church, given what he claimed to know about the police’s negative attitude towards Christians and also towards Muslims who consort socially with them. I also wanted [the applicant] to discuss at a hearing what had had happened to his alleged friend [Mr A], given that it was supposedly know in the local community that [Mr A] had been leading [the applicant] to attend Christian church services and hence, potentially perceptibly, away from Islam. In addition, I needed [the applicant] to provide a detailed update on the circumstances of his family over the years since he left Pakistan, given his claims about his known adversaries threatening to harm those family members. I needed [the applicant] to clarify the apparent discrepancy as to how many times he attended a Christian church in Pakistan. I needed [the applicant] to clarify the time line in which his first marriage supposedly failed in 2013 over the issue of his interest in Christianity, even before he resolved in [Country 1] in 2013 to “monitor” [Mr A], and before he started attending church with [Mr A] in 2016. I considered that these were not questions that I could simply raise with him, say, in writing for a written response under s.424 of the Act.
I needed [the applicant] to explain in much more detail how he came to a such a state of mind in 2016, in the claimed circumstances, whereby he only intended to visit here long enough to attend the “[Product 1] expo” [during] August 2016. I note he did say that the threats to kill him had stopped at some point in 2016 and that he somehow felt optimistic as a result. However, I needed to obtain from him more details as to why he did not act on the first threat and assumed that when that and other threats ceased to be repeated and updated they had been withdrawn. I needed more information about how claimed optimism overcame claimed fear. This was not something that I could satisfactorily explore, say, in a questionnaire.
I needed to gather more information from [the applicant] about his life in Australia between August 2016 when he arrived here and September 2017 when he was baptised. This was not something I could merely ask him to provide in a written statement. I needed to be able to ask supplementary questions and seek further detail in real time.
I needed more information from [the applicant] about how he seemingly switched from the Anglican church in Sydney to the Catholic church. I needed him to tell me which church was the one in which he undertook catechetic preparations for baptism. These were not questions that I could usefully take to one side and put to him in writing.
I needed more information linking the first two witnesses to [Church 1]. I needed more detailed information about more precisely when in 2017 they became acquainted with [the applicant], and in what particular circumstances.
I acknowledge the written references sent from Pakistan and the documents purporting to be reports to police about [the applicant]’s relationship with [Mr A] and the reaction it allegedly caused in society. However, I needed to be able to ask [the applicant] about these documents in a real-time interface in order to be able to determine what, if any, weight to put on each.
Generally, I needed more of a detailed, consistent, subjective human narrative from [the applicant] that was available to me in his files. I needed much more information in order to be satisfied that [the applicant] is genuinely a Christian and a Catholic. I also needed more information from him as to whether he faces a real chance of suffering potentially relevant harm for reasons of his affiliation with Christians in Australia.
As things stand, without having had to the opportunity to discuss [the applicant]’s claims with him in person and hear his responses, I am not satisfied that he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 4056

10 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies