1729039 (Refugee)
[2021] AATA 4093
•10 September 2021
1729039 (Refugee) [2021] AATA 4093 (10 September 2021)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1729039
COUNTRY OF REFERENCE: Pakistan
MEMBER: Justin Meyer
DATE: 10 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 10 September 2021 at 12:54pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – particular social group – atheist – apostasy – fear of torture – fear of killing – atheist organisation in Australia – period of unlawful residence – delay in applying for protection – blasphemy laws – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 dependants.
In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
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 13 November 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 18 June 2015. The delegate refused to grant the visa on the basis that the applicant did not have a well - founded fear of persecution nor did he have a real chance of significant harm. It was found that the applicant did not receive threats from his family nor did they cut him off financially or disown him for being atheist.
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 issues in this case are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
The applicant's identity is established as [an age]-year-old male, as evidenced by a Pakistan passport. This passport evidence before the Department and the Tribunal confirms his identity and nationality. The applicant claimed to be a citizen of Pakistan in his application.
Evidence
The applicant’s visa history is as follows:
Date Event details 28/05/2007 [Student] visa application lodged. 16/06/2007 Application refused. 09/07/2007 [Student] visa application lodged. [date]/09/2007 Arrived in Australia as the holder of a [Student] visa. 08/04/2009 Education Provider notified the Department that the applicant’s enrolment was cancelled due to non-payment of fees. Last date of study recorded as 12/12/2008. 30/08/2009 Visa ceased; applicant remained in the country unlawfully 18/06/2015 Protection Visa application lodged 23/06/2015 Associated Bridging E visa (BVE) granted
In his application to the department, the applicant claimed as follows:
· He does not wish to return to Pakistan because he has abandoned his Muslim religion. He is now an atheist and the thought of returning to Pakistan has made him depressed and stressed.
· If he returns to Pakistan he will be killed. He will be physically tortured and deprived of all his assets. Even members of the public will kill him.
· Pakistan is a very strong Muslim society when it comes to people who abandon religion they think you are a traitor and the law suggests the death penalty. Even if they do not punish you officially the government officials or the public kill you unlawfully.
· The authorities cannot protect him because it is a crime to abandon religion and there is no protection.
· He cannot relocate in Pakistan because the country is Muslim dominated and populated, so it is the same everywhere.
In support of his claims the applicant provided the following documents:
· Correspondence from [Doctor A], [of Health Service 1], dated 3 August 2017, stating that the applicant was suffering from anxiety, stress, and mild depressive symptoms.
· Correspondence from [Friend A], [Community Group 1], dated [in] August 2017, confirming that he first met the applicant at a Melbourne Atheist [meeting] [in] March 2016.
· Correspondence from [Official A], former President of [Community Group 1], dated [July] 2017, confirming that she first met the applicant when he joined the Melbourne Atheist [meeting] [in] June 2015.
· Correspondence from [Official B from], [Political Party 1], dated [in] August 2017, confirming that he has known the applicant since about December 2015 when they met at an Atheist [meeting].
· Photographs attesting to the applicant's attendance at functions held by atheists. Following his interview the applicant provided:
· Psychological Report, [Psychologist A], [Health Service 2], dated 18 October 2017 stating that the applicant appears to be experiencing significant anxiety and stress.
The applicant’s written submission to the Tribunal was in these terms:
· The applicant was born and raised in a wealthy but conservative family in Pakistan. [Having specified children], the applicant’s parents are alive and his father is a retired, high-ranking [official] who is now active in Pakistani politics.
· When the applicant was younger, he visited [a] police station and witnessed police officers openly beating up a tied-up man which deeply disturbed him. While growing up in Pakistan, the applicant was coerced into practicing the Islamic faith with the repercussions of suffering a beating if he refused to practice or study Islam. This is evident by the completion of his secondary education in an Islamic boarding school.
· From a young age, the applicant identified as an atheist as he believes that all religions are “man-made” and his ethics inform him on what is right from wrong rather than God or Allah. Given that enforcing Islam is a ‘way of life’ in Pakistan, he practiced Islam while living with his family as he was fearful of physical harm and other severe consequences of being estranged from his family without financial support. With the knowledge that blasphemy is a crime in Pakistan, his readings on atheists, being arrested in Pakistan and the disturbing incident of witnessing a man being tortured by the police, the applicant wanted to leave Pakistan as it is the only way that he could achieve religious freedom safely.
· After arriving in Australia on a student visa in 2007, the applicant renounced his Islamic faith and identifies himself as an atheist which is “blasphemous”, “life-threatening” and socially stigmatised in Pakistan.
· The delegate had doubts that someone who abandoned Islam without converting to another religion would necessarily face a real chance of harm from the authorities or society. The delegate also had credibility concerns about the timing of the applicant’s membership with an atheist organisation in Australia. The psychological report was from self-diagnosis and a single visit. There were differing accounts of when his father ceased financial support and there was a delay in seeking protection, leading to a conclusion that there was no genuine fear for his safety.
· The applicant submitted that there was an overreliance on one article of country information, which led to a failure to take into account a plethora of information on the treatment of apostates and atheists in Pakistan.
· Further, the applicant arrived in Australia in 2007, and remained in Australia unlawfully between 2009 and 2015. During this period of unlawfulness, regardless of the duration, would carry overwhelming stress and anxiety. It is understandable, and expected, that the applicant would be in a state of constant anxiety and would feel like he could not avail themselves in any support system in Australia for some time. For some people, a mixed state of anxiety and depression takes several years to overcome.
· The applicant had already been residing in Australia unlawfully for approximately six years. His membership with atheist organisations in 2015 should not impugn his credibility as he could have been able to continue remaining in Australia unlawfully for another 6 years after that.
· The case officer also did not accept the applicant’s atheist beliefs as the support letters provided by members of the Melbourne Atheist [group] were ‘self-serving’. The applicant questions the delegate’s assessment as to what is self-serving and what is not. There is no objective assessment that could be made regarding someone’s (non)religious beliefs – as they are intrinsic to the individual. It is contradictory to accept that the applicant is an active member of an atheist group, without actually being an atheist.
· The applicant claimed that his father cut off all contact with him in 2009 due to family problems. The applicant’s application for work rights in 2017 included claims that he felt the burden of his father paying for his tuition and began failing his subjects, making his father cease his sponsorship in 2009. The cutting off financial sponsorship was due to a culmination of 1) the applicant’s atheist beliefs, and 2) his academic performance. The applicant was financially supported by his father and soon began to feel that he was a financial burden, resulting in him failing his subjects in 2009. During this time, the applicant told his family and friends in Pakistan that he was an atheist. While many of his
friends were critical his decision with some making threats, the applicant’s father told him that he would kill him upon his returned and instantly cut him off financially.
· The delegate took an overly-stringent approach to the applicant’s claims. 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.
· The delegate should have taken into consideration that those applying for protection from their home countries are a vulnerable class of people. No two people experience and process trauma in the same way, and as such, it would be unreasonable to adopt a generalist notion of when an applicant should have decided that their home country can no longer be their home country. Home is where the heart is, and it was with a heavy heart that the Applicant family finally realised that Pakistan would, was, and would no longer be a safe place to reside.
Evaluation in the light of the applicant’s evidence in the hearing:
The applicant said that he studied [subject 1] in his late teens. His father was a retired [official]. He went to [a specialised] secondary school and his family was religious.
He speaks Urdu and has family are Pashto. The family is Sunni Muslim.
His father is very strict, he forced his children and beat them he said.
The applicant now enjoys his freedom in Australia. He experiences freedom of religion.
He has no religious obligations and is happy. He has not prayed and not been to a mosque.
He has read about the Koran online and watched documentaries. He has a scientific understanding and does not accept Islamic accounts of the prophet ‘going to the moon’, which was taken to mean the Koranic account of the miracle of the Prophet splitting the moon. He accepts the humanist / agnostic / atheist approach.
The Tribunal asked the applicant what atheism meant to him. He said that there was no evidence that there was a God. He considers himself to a humanist agnostic at times. He does not believe.
He said upon inquiry that he had mentioned this to his parents – he told them about his lack of beliefs. He will not go to Pakistan as a result – they were furious. They said you can die there, “do not come to Pakistan.”
He was not going well in his studies in Australia. He was not doing [subject 1] studies successfully. His father did not want him to do anything else. His father threatened him. He said he was told he would not be safe. He would be punished. He understood the punishment as being beaten up, going to prison. They would not hesitate he said.
He would be accused of blasphemy, he said. In response to the Tribunal’s queries he said that his parents had stopped loving him. They had loved him in the past. No other sibling had turned away and they were not happy about it.
He described himself as a more active atheist and said that he went to [meetings] with people with a similar outlook. He started doing this in 2015 in order to meet people like himself. I asked why he did not do it earlier – he replied it was because he was scared about the response he would receive. This was not expected of people in Pakistan – people were Muslims. The reaction would be that he was apostate. When he was young he was scared to speak up. He would not put atheist comment on [social media].
But later he did question religion on [social media]. Friends cut him off. He feared that he could be harmed in Australia by any Muslim with radical views. He felt that Australia was a free country and people were protected.
He was [an official position] of [Community Group 3]. He attended meetings. I asked what the subject matter was for example. He said that he had attended a rally on Cardinal George Pell. His friend [Friend A] had supported him in this.
He did not accept the delegate’s suggestion that this was to enhance his protection claim. He said these were his own thoughts and he was doing the right thing. He could not do so before. He was worried about harming himself and he was in a bubble of fear in the past. He viewed his changes as being a case of doing the right thing.
He emailed the Pakistan [representative in Australia] in regard to his passport and told them that he had a current protection visa application. There is a copy on file of an email advising the [representative] that he applied for a protection visa in Australia.
The delegate concluded that as there would have been no reason for the applicant to notify the Pakistani authorities that he had sought Australia's protection his actions indicated that he was attempting strengthen his claims for asylum in Australia.
The applicant told the Tribunal that he had no representative at the time which explains his email. The Tribunal cannot positively conclude that the applicant was trying to enhance his claim by writing this email. It could also be explained by ignorance, lack of forethought or a lack of professional advice.
He overstayed his visa by some five to six years. This certainly is viewed negatively by the Tribunal and diminishes his claims. He said he was in a declining situation where he was failing at his course and was estranged from his father. His mother checks whether he is dead or alive every three to four months. His mental health was suffering.
The Tribunal notes that there is an 18 October 2017 report from a psychologist, [Psychologist A] on file. It repeats a number of the main claims of the applicant surrounding his background and atheism. The psychologist further notes:
“[The applicant] reported that his student visa expired in 2009, when he was about [age] years old, as he stopped studying his course. He stated that he did not feel safe returning to Pakistan, but he did not contact immigration officials. At that time, he stated, he did not know how to contact these officials and he feared being placed in an immigration detention centre or being deported. During 2009, [the applicant] stated that he increasingly turned to alcohol to help him cope with his high stress levels and he eventually became dependent on alcohol.
In 2015, he reported himself to authorities, as he wanted to do the right thing. It took two years before [the applicant] was interviewed by immigration officials and his application for a protection visa is still being processed.”
I have formed the conclusion that the applicant was acting out of fear by letting his studies slide along with his lawful status. The Tribunal draws no adverse inference about his credibility because of this conduct, undesirable as it is.
The Tribunal notes the assessment that the score on the DASS Measure indicates that he is suffering from stress levels in the moderate range. His anxiety levels are in the extremely severe range and his depression score is in the severe range.
His stress levels are above the 87th percentile. That is to say that he is more stressed than 87 out of 100 people or 87% of people in the general population.
His anxiety levels are above the 99.5th percentile. That is to say that he is more anxious than 99.5 out of 100 people or 99.5% of people in the general population.
His depression levels exceed the 95th percentile. That is to say that he is more depressed than 95 out of 100 people or 95% of people in the general population.
The Tribunal has no reason to believe that his situation is markedly different to the assessment of 2017 and he presented as stressed albeit coherent. His subsequent assessment from [Psychologist B], of 22 March 2021 confirmed the applicant’s eight further sessions at the [named] hospital and ongoing anxiety, depression and alcohol dependency.
The Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information.
Further evidence was obtained by an in-person witness, [Witness A], and another witness [Official A]. They both are fellow atheist community members who gave testimony to the applicant’s commitment to the cause and his fears in Pakistan to do with his family and the wider society. The society wrote to confirm the applicant’s involvement in atheist activities and there are submitted photos of him at events.
The Tribunal finds on detailed evidence that the applicant is an atheist and has not believed in any god, life force or religion throughout his lifetime.
The Tribunal finds that he is active in atheism, talks to people escaping toxic religious groups in his volunteering in an atheist group. I have no reason to believe that he would change his views or activities should he return to Pakistan.
The Tribunal also finds that the applicant has a real prospect of being harmed by his family members if he returns. From consistent evidence and corroboration of his story from witnesses I find that certain family members - such as his father - who already excoriate him, could well go on to do worse.
The Tribunal considers the position of atheists or apostates in Pakistan in the light of possible harm from family and others in Pakistani society, based on DFAT’s most recent country report.
“Blasphemy
Blasphemy and other offences relating to religion are criminalised in Pakistan under Articles 295 and 298 of the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. Punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by
a fine. Religious conversion from Islam (apostasy), while not illegal, is often seen as blasphemous and can result in prosecution under blasphemy laws, or familial or communal violence. Article 295A prohibits insulting any religion, not just Islam, and carries a sentence of up to ten years’ imprisonment, which may also be accompanied by a fine.
In 2017, the independent Human Rights Commission of Pakistan (HRCP) reported an increase in blasphemy-related violence, use of religious rhetoric, incitement of hatred, and discrimination against minority groups. The HRCP noted the government failed to repeal discriminatory laws. Local and international observers report increasing misuse of blasphemy laws, and a widening of actions considered chargeable blasphemy offences.
Although under the law, courts cannot impose a death sentence based on a police First Information Report (FIR, an initial written record of a complaint or reported crime), this occurs and judges often accept reports of blasphemy at face value.
Extremist groups and individuals have targeted politicians and judges who advocate on behalf of minorities or seek to change the blasphemy laws. Former governor of Punjab, Salman Taseer, was assassinated by Mumtaz Qadri, a member of his security detail, for calling for reform of blasphemy laws. Large numbers of people protested when Qadri was executed in February 2016. The media also fears reporting on blasphemy due to the significant personal risk involved.
Individuals have used blasphemy laws to settle personal or property disputes. Following an accusation, police automatically detain the alleged blasphemer—usually in solitary confinement—ostensibly for their own safety. In 2010, a Christian woman, Ms Asia Bibi, was convicted of blasphemy and sentenced to death following a dispute with her Muslim neighbours. In October 2014, the Lahore High Court upheld Ms Bibi’s death sentence, however in October 2018, the Supreme Court of Pakistan acquitted Ms Bibi.
Communal violence also often targets those accused of blasphemy. In November 2014, a mob burned a Christian couple to death in the brick kiln where they worked as bonded labourers after they were falsely accused of throwing out pages of the Quran with their household rubbish. In November 2016, a military anti-terror court sentenced five people to death for their murder. In July 2014, an angry mob burnt several houses and vehicles in Gujranwala, eastern Punjab, killing an Ahmadi woman and two young girls, and injuring eight others. An allegedly blasphemous social media post by an Ahmadi reportedly triggered the incident. In April 2017, hundreds of university students beat and fatally shot a journalism student at a university campus in Mardan, allegedly for blasphemous social media posts.
Observers note the student had criticised the university administration and actively participated in open debates. A judicial inquiry found no evidence of blasphemy.
The government has applied the blasphemy law to digital content, with at least one person in 2017 receiving a death sentence for alleged blasphemy on Facebook.
Internet bloggers who criticised the military, disappeared and later emerged in police custody facing blasphemy charges. While the Islamabad High Court acquitted the bloggers, they left Pakistan fearing for their safety.
According to the USCIRF 2018 annual report, approximately 100 blasphemy cases were registered between 2011 and early 2018, and an estimated 100 people are currently serving prison sentences for blasphemy. Of the 100 people in prison, 40 face the death penalty or a life sentence. Pakistani courts have dismissed several blasphemy cases for lack of evidence. Around 95 per cent of blasphemy cases end
in acquittal, although often only after extended periods of detention. DFAT is not aware of any executions of people convicted of blasphemy.
While blasphemy laws apply to both Muslims and non-Muslims, it is not culturally acceptable for religious minorities to make accusations of blasphemy in Pakistan.
While the majority of cases are brought by Muslims against Muslims, DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy, disproportionately affect religious minorities in Pakistan.” 1
The Tribunal is of the view that the applicant could well fall foul of blasphemy laws. He has converted ‘out of a religion’ into ‘no religion’. There is no evidence that having no belief is an escape for him with regard to these laws.
Relatively recent media from BBC on this subject confirms the dangers facing atheists, particularly identifiable atheists:
“Being an atheist in Pakistan can be life-threatening. But behind closed doors, non- believers are getting together to support one another. How do they survive in a nation where blasphemy carries a death sentence?
Omar, named after one of Islam's most revered caliphs, has rejected the faith of his forefathers. He is one of the founding members of an online group - a meeting point for the atheists of Pakistan.
But even there he must stay on his guard. Members use fake identities. "You have to be careful who you are befriending," he says.
One man contacted Omar to say he had visited his Facebook profile and printed out pictures of him with his family. "You cannot be safe," Omar says.
In Pakistan, posting about atheism online can have serious consequences.
Under a recently passed cyber-crime law, it is now illegal to post content online - even in a private forum - that could be deemed blasphemous.
The government took out adverts in national newspapers asking members of the public to report any content they believe could constitute blasphemy.
And the law is being enforced. In June this year, in the first case of its kind, Taimoor Raza was sentenced to death for posting blasphemous content on Facebook.
….
Although atheism is not technically illegal in Pakistan, apostasy is deemed to be punishable by death in some interpretations of Islam. As a result, speaking publicly can be life-threatening.2
1 DFAT Country Information Report Pakistan, 20 February 2019, [3.82] – [3.89]
2 Pakistan’s secret atheists, by Mobeen Azhar, BBC News 12 July 2017 40580196
Public opinion appears strongly against apostates:
When asked about the death penalty for those who leave the Muslim religion, at least three-quarters of Muslims in Jordan (86%), Egypt (84%) and Pakistan (76%) say they would favor making it the law. 3
Further evidence that non-believers in Islam are categorised similarly to apostates is contained in a 2012 humanist lobby group report:
“The Freedom of Thought 2012 report, issued this week by the Netherlands-based International Humanist and Ethical Union (IHEU), states that non-believers in many Islamic countries suffer discrimination and can even be executed if their beliefs become known to the public or state authorities.
The IHEU - a union of over 100 humanist, rationalist, secular, atheist and free thought organizations - conducted its survey across some 60 countries.
While non-believers are also legally and culturally discriminated against in many secular Western countries, the results showed that persecution was becoming increasingly acute in non-secular Islamic nations.
The expression of atheistic views or anti-religious ideas can even bring with it a death sentence in Afghanistan, Iran, the Maldives, Mauritania, Pakistan, Saudi Arabia and Sudan, the report noted.
Pakistani experts say that discrimination against non-believers has gradually increased in their country, which was once also known for its rebellious secular student movements, Marxist poets and painters, and non-conformist political leaders. They claim things have changed for the worse in the Islamic country.”4
The Tribunal notes further credible sources on apostasy and atheism in Pakistan such as ‘The Diplomat’ publication of the Lowy Institute think tank: ‘Pakistan’s War on Atheism Pakistan’s anti-blasphemy crackdown is tightening the noose around nonbelievers’ of 2017:
“But what this has meant is that both the civilian and military leaders now have to appease their heretofore Islamist allies to avoid collective backlash, as action against jihadist groups becomes inevitable. Pakistan’s overt war against freethinkers might just give the state the respite that it needs.
Last year, Pakistan also passed its cybercrime law, which upholds identical punishments for Penal Code violations in the cyber-sphere. This means that “blasphemy” would be punishable by death, even if committed online.
The immediate impact of January’s abductions was a mass exodus of anonymous secular bloggers from the web. Satirical publication Khabaristan Times was also banned by the PTA, while a shift in editorial policies has been visible in many online and mainstream liberal publications.”
…
3 Pew Centre Report December 2, 2010 ‘Muslim Publics Divided on Hamas and Hezbollah Most Embrace a Role for Islam in Politics’ hezbollah/
4 Being A Non-Believer in Pakistan, DW, 14 December 2012 atheists – a broad term encompassing agnostics, the irreligious, deists, and humanists alike – have been lazily painted by the Islamists as “liberals and seculars,” despite the fact that many believing and practicing Muslims identify as such as well.
Muslims openly identifying as atheist in Pakistan would be an open invitation to violence, considering the state’s blasphemy laws are interpreted to outlaw apostasy, coupled with the National Database and Registration Authority’s (NADRA) refusal to let citizens officially change Islam as their religion. Hence, the aforementioned “secular liberal” label also provides refuge to the atheists.5
To the Tribunal’s mind there is a plethora of country information to indicate that the applicant faces a substantial risk equating to a real risk and has a well-founded fear of persecution.
The country information I have reviewed and referred to above suggests that the agents of harm the applicant claims to fear include the Pakistan state; non-state religious actors; and, members of the wider Pakistan community (including members of his family).
I find that discrimination, harassment and intimidation of the particular social group, being former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan is for the essential and significant reason that they form the particular social group. I further find that the legal and institutional nature of such persecution is both systematic and discriminatory in the relevant sense, and amounts to serious harm for the purposes of s.5J(4) of the Act.
The above country information demonstrates that there is a real chance of significant physical harassment and significant physical ill-treatment in Pakistan for former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in that country. This chance of significant physical harassment and significant physical ill treatment as a result of social and religious forces, find expression in the legal system, to which former Muslims and imputed apostates embracing and advocating for secular humanist ideologies would be subject.
Effective protection measures are not available to members of this particular social group, being innate or immutable characteristics of the applicant and which are shared by members of the particular social group. This is because adequate protection against persecution either cannot, or will not, be provided to members of the particular social group by the Pakistan state, and credible country information raises doubts about whether the Pakistan state is willing and able to offer such protection for the purposes of s.5LA of the Act.
s.5J(3) provides that this does not apply to a modification that would conflict with a characteristic that is fundamental to a person’s identity or conscience, or that would conceal an innate or immutable characteristic or to a modification that would require a person to alter their religious beliefs, their sexual orientation, their gender identity, or conceal their true sexual orientation, gender identity or intersex status.
The well-founded fear of persecution cannot be regarded as being restricted to a single part of the receiving country if relocating carries with it the need to avoid persecution by living discreetly or otherwise being invisible.
5 Pakistan’s War on Atheism – The Diplomat, Kunwar Khuldune Shahid, March 10,2017 type="1">
The real chance of significant physical harassment and significant physical ill treatment faced on return to Pakistan is systematic and discriminatory and relates to all areas within Pakistan.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to her well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Justin Meyer 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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
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