1729265 (Refugee)

1729265 (Refugee) [2022] AATA 1087 (17 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729265
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Susan Hoffman
DATE:17 February 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 17 February 2022 at 12:04pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – religion – Christians – applicants have a well-founded fear of persecution – risk of harm to Christian girls –effective protection measures are not available to the applicants –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 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 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 1 November 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Pakistan, applied for the visas on 21 October 2016. The delegate refused to grant the visas on the basis that the applicants, who are Christians, did not have a well-founded fear of persecution in relation to Pakistan.
The Tribunal formed the view that it could make a decision favourable to the applicants on the papers, given the evidence already available to it, in particular, recent country information.
The applicants were represented in relation to the review.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether or not the applicants have a well-founded fear of persecution because they are Christians. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicants, who are husband and wife and their four children, claim to be citizens of Pakistan. According to the delegate’s decision, they each provided the Department with documentary evidence of their nationality in the form of an Islamic Republic of Pakistan Passport.
On the evidence before it, the Tribunal accepts that the applicants are citizens of Pakistan, that Pakistan is the country of nationality and the receiving country, and that the applicants do not have a right to enter and reside in another country. The Tribunal finds therefore that they are not excluded from Australia’s protection obligations under s.36(3).
The primary applicant (henceforth the applicant) was granted a [temporary] visa on 29 November 2012 and arrived in Australia [in] December 2012 from [Country 1]. His wife and four children arrived in Australia the next day, [in] December 2012, from Pakistan.[1]
[1] In the delegate’s decision, this date was given as [date] which appears to be an error. Movement records confirm the correct date is [date] December 2012.
The applicants left Australia about a year later, on [date] December 2013 and returned to Australia on [date] January 2014.
The applicant next left Australia on [date] May 2014 and returned to Australia on [date] May 2014. He left again on [date] June 2014 and his wife and children left Australia on [date] July 2014. The family returned to Australia eight months later on [date] March 2015.
On [date] March 2015, the applicant left Australia and returned on [date] September 2015. His family did not leave Australia during that period.
On [date] September 2015 the applicants left Australia and returned on [date] September 2015.
On 27 April 2016 the applicant’s Temporary [visa] was cancelled. He appealed this decision but withdrew that appeal on 7 October 2016. The applicants lodged their claims for protection on 31 October 2016.
The applicant was born on [date] in Karachi, Pakistan. He claims to be Catholic. According to the delegate, the applicants’ passports identify them as Christians on the second page.
The applicant’s wife was born on [date]. Their children’s dates of birth and ages are as follows:
· [details deleted]
The applicants’ claims for protection as recorded in the delegate’s decision are as follows:
·They are not safe as Christians in Pakistan which is a Muslim country.
·Their daughters have never studied in Pakistan, only [Country 1] and Australia so will not have the same opportunities for schooling as Muslim children.
·They are not free to express their own faith by wearing western clothing. The females in the family will be seen as impure ladies if they don’t wear a Burka.
·In Pakistan, unknown people harm people
·The father was robbed of a phone and money at gunpoint
·Pakistan is 96.4% Muslim and 3.6% other religions
·They cannot move anywhere in Pakistan as the issues are universal.
·Children are kidnapped in Pakistan and valuables are stolen
·The authorities in Pakistan will not protect them because they are Christians
·The applicants have never sought help because as Christians in a Muslim country, they have no rights and if they complain, no action is taken
The delegate noted in her decision that the applicants confirmed at the departmental interview that they did not have separate claims to each other. She recorded that they advised specific incidents where they were harmed, as follows:
·In 2003, the applicants were hit by a car from behind whilst riding tandem on a motorcycle. The car struck applicant two’s leg. When the party at fault saw that applicant two was not wearing a Burka, the two were verbally abused as low class and Christian and called vulgar names. Applicant two fell from the motorcycle and hurt her leg. The incident was not reported to any authorities.
·In 2004, four armed criminals entered applicant one’s family home and demanded cash and jewellery from the applicant’s mother. The mother complied with the demand. The mother was threatened with death if the matter should be reported to the police. The incident was not reported to any authorities.
·In 2006, the applicants were riding tandem on a motorcycle and were stopped at a red light. A motorcycle with two riders pulled alongside, the passenger held a hand gun at applicant one and demanded his phone and wallet. Applicant one complied. The incident was not reported to any authorities.
The delegate stated as follows:
The applicants provided a clear, consistent and compelling account of their lives as Catholics in Pakistan. Their families have been Catholic for several generations, on applicant one’s side having descended from Indian Hindus who converted to Christianity. [His wife’s] forefathers similarly were Christian converts.
Applicants One and Two have known each other most of their lives, growing up in adjoining neighbourhoods.
Applicants One and Two explained their worries about increased attacks on Christians throughout Pakistan, their perceived high visibility as Christians in Karachi or anywhere in Pakistan, and the fact that they felt confined to a small area of the city of Karachi, beyond which it was too unsafe to travel.
They are concerned that their four daughters will be marginalised and abused and clearly identified as non-Muslim by their dress, and that they will have to learn Islam and Urdu in their schools and cannot advance if they do not pass those subjects. The applicant parents both speak Urdu. They spoke about individual freedoms for their daughters in sport and in society stating that their daughters would not have the same opportunities in Pakistan unless they were wealthy.
The delegate accepted that the applicants were Catholics from the Christian community in Karachi, and that they identified as Punjabi Christians. The delegate also accepted that the robberies and verbal abuse occurred as described by the applicants.
The delegate noted that the three incidents described earlier all occurred before they travelled to Australia in 2008. Despite these incidents, they returned to Pakistan a number of times between 2012 and 2015. The delegate wrote that the applicants agreed many people were robbed in Pakistan and they were crimes of opportunity, rather than crimes targeting the applicants because they were Christian. The delegate found that the applicants had been victims of generalised crime in Pakistan that affected the entire population rather than being targeted as Christians for criminal activity.
The applicants said that they were obliged to travel to Pakistan between 2012 and 2015 to see the primary applicant’s father who was ill. When they returned for an extended period between 2014 and 2015, they lived normal lives in Pakistan, with the daughters attending school and shopping excursions.
The applicants stated that they no longer wished to return to Pakistan as their daughters would have no sporting or academic freedoms. The delegate noted that loss of an opportunity for a superior education is not persecutory behaviour.
The delegate did not accept that the applicants held genuine fears for their safety because of their faith as Christians in Pakistan.
Country information
DFAT released a country information report on Pakistan dated 25 January 2022. The most recent report prior to that was dated 20 February 2019. The Tribunal has, of course, relied on the most recent report. It notes that the 2022 report indicates an increase in risks faced by Christians compared to the risks identified in the earlier report. To give just one example, in the earlier report (and the report relied on by the delegate from September 2017), DFAT assessed that Christians faced a low level of official discrimination (3.143) and in the most recent report, the risk level of official discrimination was assessed to be moderate (mainly in the form of employment).
The 2022 DFAT report gives the meaning of ‘moderate risk’ as DFAT being aware of sufficient incidents to suggest a pattern of behaviour. About official discrimination, the DFAT report states that it is:
1. legal or regulatory measures applying to a particular group that impede access to state protection or services that are available to other sections of the population (examples might include but are not limited to difficulties in obtaining personal registrations or identity papers, difficulties in having papers recognised, arbitrary arrest and detention).
2. behaviour by state employees towards a particular group that impedes access to state protection or services otherwise available, including by failure to implement legislative or administrative measures.
According to the DFAT report, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include the following:
2.34…domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
The report notes that terrorist attacks increased in 2021, reversing a previous six-year downward trend. There were 1,717 attacks in 2013, 625 in 2015, 262 in 2018 and 146 in 2020 and 200 in 2021. The number of attacks in 2021, although more than in 2020, are still far fewer in number than in 2013.
2.36 Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
The report noted that in-country contacts told DFAT militants in Pakistan were regrouping. These contacts expressed concern that the deteriorating security situation in Afghanistan in 2021 would increase violence in Pakistan; and that the Pakistani government’s practice of allowing former terrorists to return to communities or engage in politics placed minorities and others at risk (2.38).
According to the DFAT report, Tehreek-e-Taliban Pakistan (TTP) is an umbrella group responsible for some of Pakistan’s most notorious terrorist attacks. Its long-term goal is to overthrow the state and establish Sharia law and an Islamic caliphate (2.39).
TTP attacks within Pakistan have increased since the Taliban took power in Afghanistan in August 2021. TTP has moved away from targeting civilians to focus on attacks on the military and government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shias, Ahmadis and Christians. The report lists a number of areas in Pakistan where the TTP have particular influence, with parts of Karachi included in the list (2.40).
Lashkar-e-Jhangvi (LeJ) is named as another group that targets minorities such as Shias, Christians, Hindus and Ahmadis. It is closely aligned with Al Qaeda. (2.41). The various groups sometimes collaborate to carry out attacks (2.42).
According to the 2017 national census, Muslims comprise 96.47 of the population and Christians about 1.27% (3.28).
DFAT assessed that religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020 and public and online hate has increased (3.31).
3.31 While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies.
Under a subheading ‘Blasphemy’ (section 3.32) the report discusses that blasphemy and other offences relating to religion are criminalised under Articles 295 and 298 of the Pakistan Penal Code. The punishment for blasphemy is death. Defiling a copy of the Koran is punishable by life imprisonment. It notes that religious conversion from Islam is not illegal but can be seen to be blasphemous and can result in prosecution under blasphemy laws or result in familial or communal violence (3.33).
3.34 The Centre for Social Justice (CSJ) reported 200 blasphemy cases in 2020, an all-time high which has been widely linked to rising religious intolerance. Of these 35 were sentenced to death. Religious minorities are disproportionately affected: in 70 per cent of the cases the accused was Shi’a, 20 per cent Ahmadi and 3.5 per cent Christian. False accusations of blasphemy are used to settle personal disputes, as in the case of Asia Bibi, a Christian woman sentenced to death for blasphemy in 2010 after a dispute with Muslim neighbours in which they refused to share water with her because she was a Christian. Bibi was acquitted and released from prison in 2018 and fled to Canada. People have been charged with blasphemy for online speech; for instance, three men were sentenced to death by an Islamabad court in 2021 for sharing ‘blasphemous’ material on social media. In July 2021, an eight-year-old boy was charged with blasphemy in Eastern Punjab after allegedly urinating in a Madrassa library.
3.35 The conviction rate for blasphemy in the lower courts is high, and judges are often under enormous public pressure to deliver a guilty verdict. A Pakistani legal expert told DFAT most blasphemy convictions were overturned by the higher courts, but an accused blasphemer was likely to spend years in prison even if the accusation was eventually found to be baseless. Judges and defence lawyers are often reluctant to take on blasphemy cases due to the personal security risks involved, resulting in appeals being delayed until a new bench is constituted.
3.36 Accused blasphemers are at risk of extrajudicial killing, before, during, and after being taken into custody. In December 2021, a Sri Lankan man was beaten to death and his corpse set on fire after being accused of blasphemy due to removing posters from the wall of the factory in Sialkot, Punjab, where he worked. During the murder his killers chanted slogans popularised by Tehreek-e-Labbaik Pakistan (TLP), an Islamic extremist group. Afterwards they posed for selfies with his corpse and shared video of his murder on social media. In August 2020 a US national on trial for blasphemy, Tahir Naseem, was gunned down in a Peshawar courtroom by a 15-year-old boy. Thousands rallied in the streets to support Naseem’s killer, and politicians visited the killer’s home and police posed for selfies with him. Extremist groups and individuals have targeted politicians, lawyers and judges who have spoken out against blasphemy laws. The former governor of Punjab, Salman Taseer, was assassinated by one of his bodyguards for calling for reform of blasphemy laws. Large numbers of people protested when his assassin (whom they considered a hero) was executed in February 2016.
3.37 DFAT assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and high risk of societal and official discrimination in the form of popular denunciation, unfair trials and inadequate state protection. The risks are especially acute for members of religious minorities, including Shi’a, Ahmadis, Christians and Hindus.

Of particular relevance in this case, given the age of the applicant’s daughters, is that Christian, Hindu and Sikh girls are targeted for forced and underage marriage.
3.38 Abductions reportedly number in the hundreds each year and have involved girls as young as 12. Religious minorities are specifically targeted due to their economic vulnerability and a belief that their conversion to Islam is religiously desirable. Forcibly married and converted girls are frequently mistreated (see also Women). Those who escape and try to revert to their own religion sometimes face accusations of blasphemy. A small number may choose to convert due to economic or other pressures. In October 2021, a proposed bill that would have outlawed forced conversions was rejected by a parliamentary committee tasked with considering the issue after the Minister for Religious Affairs told the committee “the environment is unfavourable” for passing the law.
The DFAT report recorded that, according to the 2017 National Census, there are about two million Christians in Pakistan although NGOS claim the figure is higher. Pakistani law does not restrict Christians from practising their religion and they are generally able to do so, although they sometimes face difficulties in establishing new churches (3.45).
3.46 Christians are among the most economically vulnerable groups in Pakistan. Many live in slums and are employed as ‘sweepers’ (sanitation workers), household servants or bonded labourers in brick kilns. Christians face significant societal discrimination from the Muslim majority. Job advertisements, including those for municipal and other government agencies, often specify sanitation work can only be done by Christians or other ‘non-Muslims’. Other forms of discrimination include refusal to touch or share facilities with ‘unclean’ Christians, the use of derogatory terms such as ‘infidel’ or Chura (‘dirty’), and denial of emergency relief. Christians are also disproportionately targeted by blasphemy accusations.
3.47 Christians are targeted by militant groups in Pakistan. Police provide security for major Christian churches during Christmas and Easter, reducing but not eliminating the risk of violence. Four members of a Christian family were killed by an IS gunman in Quetta in April 2018, while an IS bombing at a Christian church killed nine people in December 2017. Christians are also victims of community violence, often sparked by religious or personal disputes. In February 2021, a 22-year-old Christian man, Saleem Masih, was beaten to death for ‘polluting’ water by bathing in it. In November 2020, a woman and her son were shot dead by a Muslim neighbour who claimed they ‘defiled’ an Islamic shrine with wastewater.
3.48 Christian girls are targeted for forced and underage marriage and forced conversion, and are also targeted by people traffickers. In 2019 a report by Associated Press revealed at least 629 women, most of them Christians, had been trafficked from Pakistan to China as forced brides since 2018. Many were allegedly raped and beaten, and some forced into prostitution. Christian pastors often acted as brokers for the trafficking. The Federal Investigation Agency arrested 31 Chinese nationals in connection with these crimes in October 2019, but they were later acquitted, allegedly under pressure from officials concerned about damage to the Pakistan-China relationship. Activists allege the trafficking continues.
3.49 DFAT assesses that Christians face a moderate risk of official discrimination (mainly in the form of employment discrimination) and societal discrimination, and a moderate risk of violence throughout Pakistan.
The UK Home Office issued a country policy and information note (the CPI note) in February 2021, concerning Christians in Pakistan, broadly consistent with the DFAT report. According to the CPI note, Christians can generally practice their faith in Pakistan, attend church, participate in religious activities and have their own schools and hospitals. There are no laws discriminating against Christians. Christian festivals are officially recognised and celebrated. Religious symbols and decorations are openly displayed and bibles and other Christian literature are sold in Christian book stores.
The CPI note stated that evangelical Christians face a greater risk compared with Christians who are not publicly active.
The CPI note discussed the blasphemy laws. It stated that these have been used against all religious groups, including Muslims, although they are used disproportionately against religious minorities, including Christians. Between 2001 and 2019, there were 16 convictions of Christians for blasphemy.
Whilst convictions continued in 2020, in 2015 it was reported that over 80% of blasphemy cases were overturned on appeal. Acquittals occur though often after the accused has spent years in prison.
As at January 2021, of 53 persons imprisoned for their faith (but not necessarily for blasphemy), 31 were Christians and at least 11 had been sentenced to death, whilst a further 9 were awaiting trial or sentence.
According to the CPI note, “In general, Christians are unlikely to be subject to treatment or discrimination by the state that is sufficiently serious, by its nature or repetition, to amount to persecution.”
2.5.14 However, evangelising Christians who seek to proselytise may find themselves facing a charge of blasphemy and may be able to demonstrate that use of the blasphemy laws against them while practising their religion could amount to persecution.
The CPI note referred to the societal discrimination faced by Christians which could take the form of being called derogatory names, their Christian faith being ridiculed, people refusing to use the same crockery or utensils, touch items they have touched or eat food they have cooked.
The CPI note also address discrimination against Christians in private employment, such that it is difficult for Christians to find jobs other than those involving menial labour, which are often advertised as being open only to Christian applicants.
With regard to forced conversions from Christianity to Islam, the CPI note records that this is forbidden by Pakistani law and by Islam.
When considering the evidence before them, the Upper Tribunal in AK & SK concluded that ‘although there is some risk of abduction and forced conversion of young Christian girls, largely in rural areas and in Punjab, it does not amount to a serious risk in itself’ (paragraph 238).
2.5.26 Instances of abduction and forced conversion to Islam of Christian women and girls continue to be reported although accurate data on the number of conversions that occur each year is not available, with one source suggesting that some reports have inflated the actual numbers of cases. Voluntary conversions occur for a variety of reasons, including for social mobility and economic prosperity, as well as for marriage, which may not always be accepted by families. Whilst the government have spoken against the forced conversions of religious minorities, action to prevent such cases is reported to be inadequate
The CPI note stated that the last major attack against Christians by Islamic militants occurred in 2016 when at least 75 people were killed on Easter Sunday after a suicide bomber targeted Christians celebrating Easter in a public park in Lahore; and that the violence against religious minorities had dropped in the five years before 2019, with no targeted attacks against Christians in 2019 and no reported terrorist-related attacks in 2020. “In general, Christians are unlikely to be subject to treatment or discrimination by non-state actors that is sufficiently serious by its nature or repetition to amount to persecution.”
The CPI note stated that police security was provided at churches which reduced (but did eliminate) the risk of attack and that the police presence sometimes complemented the communities’ own security arrangements,
It was noted in the CPI note that the Prime Minister and the President offered Christmas and Easter greetings to Christians in 2020. And that in December 2020, Sindh and Punjab provincial governments announced that they would pay their Christian employees their December salaries and pensions the week before Christmas. (6.2.4 of UK report)
Urdu Point reported on 25 December 2021, that “the Christian community across Pakistan, like other parts of the world, celebrated the grand festival of Christmas on Saturday showing traditional zeal and enthusiasm.”[2]
[2] Ali, Mohammad (2021) Christmas Celebrated With Traditional Enthusiasm, accessed 10 February 2022 at
The Tribunal notes that the UK’s CPI note was dated February 2021 and the DFAT report refers to a deterioration in the security situation in Pakistan during 2021. The Tribunal considers it appropriate to give greater weight to the DFAT report as it is more recent and its content accounts for the difference between its assessment and that of the UK’s CPI note by reference to the deteriorating security situation in Pakistan during 2021.
Analysis from the Brookings Institution published in February 2022 discusses the relationship between the TTP and the Pakistan government. It refers to the resurgence of the TTP and that in October 2021, Pakistan’s prime minister, Imran Khan, revealed in an interview that he had been in talks with the TTP which was a surprise to parliament as well as to the public. In November 2021, the Pakistani government announced a month-long cease-fire with the TTP which ended on 9 December 2021, at which time the insurgents immediately resumed their attacks. In January 2022, a number of outlets reported that Pakistan had quietly restarted an attempt to negotiate with the TTP despite the media wing of the Pakistan Armed Forces referring to it as a menace. [3]
[3] Afzal, Madiha (2022) Pakistan’s ambivalent approach toward a resurgent Tehrik-e-Taliban Pakistan, accessed 17 February 2022 at
A report published by the Financial Times in January 2022 considered how the Taliban’s victory in Afghanistan has affected Pakistan:[4]
Yet the Taliban’s victory has unleashed a wave of hardline forces that Khan’s government is struggling to control, on and within Pakistan’s borders. Apart from the border tensions, these range from surging violence by emboldened domestic extremists to a growing political challenge from Pakistani Islamist parties who identify with the Taliban’s views.
[4] Parkin, B. and Bokhari, F. (2022) Taliban victory unleashes hardline forces in Pakistan, accessed 17 February 2022 at
Findings and reasons
In determining whether or not the applicants meet the criteria for protection, the Tribunal has considered the evidence before it, in particular the recent DFAT report and other reports published in 2022.
The Tribunal, like the delegate, accepts that the applicants are Christian. The delegate recorded that they were identified as such on the second page of their passports. The family name, [deleted], indicates they are Christians.
In addition, they provided a letter of support from Pastor [A] of [Church 1] who stated the church has sought to support the family for the last two to three years.
There was no evidence submitted suggesting the applicants are evangelical Christians. Based on its webpage, [Church 1] is not evangelical. The Tribunal finds that the applicants are not evangelical Christians.
As it is not in dispute that the applicants are Christian, and the applicants have not been in Pakistan since 2015, over six years ago, the Tribunal considers it appropriate to focus on recent country information to determine whether or not they would have a well-founded fear of persecution in Pakistan now and into the foreseeable future.
Risk of serious harm faced by Christians in Pakistan
The Tribunal notes the DFAT report which sets out that religious extremism and intolerance are on the rise in Pakistan; that Christians face a moderate risk of official discrimination (mainly in the form of employment discrimination) and societal discrimination, and a moderate risk of violence throughout Pakistan.
According to the DFAT report, the security situation in Pakistan was deteriorating during 2021. It is apparent that this has not yet plateaued. Country information set out earlier highlights the potential for more violence from extreme Islamist groups which does not bode well for minority groups in Pakistan such as Christians.
Related to this is the rise in blasphemy cases, some of which are targeted at Christians.
With ‘moderate risk’ defined as DFAT being aware of sufficient incidents to suggest a pattern of behaviour, and that religious extremism and intolerance are increasing in Pakistan, the Tribunal considers this suggests more than a remote chance – a real chance - of the applicants being persecuted because they are of the Christian faith. The Tribunal is satisfied that the applicants have a well-founded fear of persecution should they return to Pakistan in the foreseeable future.
Risk of harm to Christian girls
The Tribunal notes that in the 2019 DFAT report, there is mention of reports of forced conversion of Hindu girls, particularly from poorer communities but no mention of this in relation to Christian girls and children from other minority groups.
The 2022 DFAT report states unequivocally that Christian, Hindu and Sikh girls are targeted for forced and underage marriage, and forced conversion, and are also targeted by people traffickers.
The Tribunal finds that the targeting of Christian girls increases the real chance of serious harm that might be faced by the applicant’s four daughters should the family return to Pakistan.
Claims of possible harm considered cumulatively
The Tribunal is satisfied that when considering cumulatively the claims just set out, the threshold for a well-founded fear of persecution is met for all the members of the applicants’ family, and especially so in the case of the applicant’s daughters because of the targeting of young Christian girls.
Is state protection available to the applicants?
The Tribunal notes that police assist with security in protecting church services. This is in accordance with Pakistan’s formal legal framework. At 5.1, the DFAT report states as follows:
However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).
At 5.2, DFAT, in respect of prosecutions for politically-motivated or sectarian violence, refers to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
The Tribunal particularly noted the following at 3.31 of the DFAT report. “Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies.” This indicates state protection could be withheld where religious extremism is targeted at Christians.
As set out earlier, the increase in blasphemy cases has been linked to rising religious intolerance. False accusations can be used to settle personal disputes. Christians are one of the groups at particularly high risk of various harms, even the death penalty, if accused of blasphemy:
3.37 DFAT assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and high risk of societal and official discrimination in the form of popular denunciation, unfair trials and inadequate state protection. The risks are especially acute for members of religious minorities, including Shi’a, Ahmadis, Christians and Hindus.
With regard to the treatment of women and girls, at 3.100 the DFAT report stated as follows:
DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Women also face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support services.
While 3.100 does not specifically address the targeting of Christian girls for forced conversions, it does strongly indicate that if the applicant’s daughters were so targeted, it is unlikely state protection would be available to them.
Does the real chance of persecution relate to all areas of Pakistan?
Christians are a minority group across Pakistan. It is apparent from the recent DFAT report, quoted from in some length above, that Christians are at risk of persecution across Pakistan; it is not restricted to one or a few areas.
The Tribunal is satisfied that the applicants cannot, as Christians, avoid persecution by returning to an area of Pakistan other than Karachi, which is where their family home has been. The Tribunal finds that the real chance of persecution relates to all areas of Pakistan.
The Tribunal takes particular note of the DFAT report where it states that the security situation is deteriorating, and that the risk faced by Christians in Pakistan is country-wide.
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a).
They have a well-founded fear of persecution for reasons of their religion and there is a real chance, if returned to Pakistan, that they would be persecuted because of their religion. The real chance of persecution relates to all areas of Pakistan. Effective protection measures are not available to them.
As Christians, there are no reasonable steps they could take to modify their behaviour to avoid a real chance of persecution.
There is no information before the Tribunal that the applicants have a right to enter and reside in any other country.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Susan Hoffman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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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[2022] AATA 1087

17 February 2022

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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