1729956 (Refugee)

1729956 (Refugee) [2023] AATA 3286 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1729956
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Christine Cody
DATE:30 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 30 June 2023 at 8:55pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Hindu – race – Marwari – threats of harm by Muslim extremists – pressure to convert to Islam – online anti-Muslim/anti-government activities – actions taken to strengthen protection claims – vague and inconsistent evidence – credibility issues – complementary protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

The applicant is a [age]-year-old male from Pakistan who last arrived in Australia from Pakistan on [date] December 2014, holding a 1-year tourist visa (FA 600) granted 29 April 2014. He applied for a protection visa on 12 January 2015.
On 9 November 2017 a delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The Tribunal received submissions and documents and held two hearings. At the end of the second hearing the Tribunal indicated to the applicant that it would send a s 424A letter due to its concerns. The Tribunal has found that the applicant is not a reliable or credible witness, and that he is prepared to fabricate claims to be granted a protection visa. It has not accepted his claims of his motivation or events in Pakistan, however it accepts that he has devoted a significant amount of time in Australia to activities to the extent that there is now a small but real risk that he will face a real risk of significant harm in the context of the relevant country information. The Tribunal has found that his motivation for his activities has been to be granted a protection visa, and that for the purposes of his refugee claim these activities are to be disregarded; this is not the same for his complementary protection claim. The Tribunal has therefore not sent out an s 424A letter but has decided to remit the matter for reconsideration.
Department file[1]
[1] There are no non-disclosure certificates attached to the Department file.
The applicant provided forms in support of his protection visa application and supporting documents. He was initially assisted by a registered migration agent, Shefali Nandra. His background from his application form is summarised as follows:
·     He was born in [Village 1], Sanghar, Sindh, and resided with his parents, including upon return to Pakistan from trips overseas (except for 1 occasion in 2010), and in particular in 2014.
·     His religion is Hindu.
·     He can speak, read, write in English, Urdu and Sindhi
·     He completed high school in Pakistan in July [year]. From February 2009 to June 2010 he undertook an internship in [an NGO] in Karachi. From July-August 2010 he worked for another [NGO] as a data entry operator, in Karachi.
·     He left Pakistan legally, on his passport issued [2010] to travel to [Country 1]. He moved to [Country 1] in August 2010 to undertake his Bachelor [degree], which he finished in August 2014. During this time he had an internship in [a Country 1 Government body].
·     He returned to Pakistan upon completion of his degree in August 2014.
·     Whilst in [Country 1] he had travelled to [Country 2] as a tourist in 2010, 2012, 2013, and to [Country 3] as a tourist in 2011, to [Country 4] as a tourist in 2012, to Australia as a tourist in 2014, and he had travelled back to Pakistan to see his family in 2012.
·     He has parents, [number] brothers and [sisters], all of whom reside in Pakistan except for his [brother] who resides in India.
The applicant’s claims in his application form did not contain a lot of detail, and can be summarised as follows:
·     The applicant was persecuted on account of his Hindu religion and he left Pakistan because he is afraid of religious extremists. They attacked him because he is Hindu. He has been verbally abused, called names and attacked, his home has been attacked and the temple in their home was destroyed, his parents went into hiding.
·     Muslim extremists want him to convert to Islam and if he does not do so he will be kidnapped, and his parents will have to pay ransom which they will be unable to do so they will torture, rape, harm him or keep him in prison or kill him.
·     He has tattoos on his body, one was scratched by a religious extremist because having tattoos is “haram”. He has been abused many times because of the tattoos on his body. He is modern and he has a different type of lifestyle from his family: he wears jeans and T-shirts.
·     They receive no help from the government or the police as they treat them like “kafir” in Pakistan, enemies of Islam. The applicant claims that he went to the police to lodge a report, however they all only lodged a simple report as they are fearful of the dominating Muslim fundamentalists and because most of them are Muslim fundamentalists themselves. He was warned that he should not lodge such reports as it will harm his life as well as that of his parents.
·     The applicant claims that he tried to move to another city, but the conditions were worse.
·     Upon return he will be harmed, mistreated, tortured, kidnapped, killed or in prison the rest of his life until he converts to Islam. His western lifestyle will cause problems.
·     Due to religious problems and attacks, Hindu temples are being destroyed, burnt, Hindu boys are being kidnapped, killed and converted to Islam.
The Migration agent’s undated written submission provided more details of the applicant’s claims which include the following:
·     The applicant faces 'serious harm' and continuous 'systematic and discriminatory' conduct based on his 'Religion',
·     During the period till date after partition, Hindus have been treated as third-class citizens of Pakistan. Many have mistreated, physically harmed and forced to convert to Islam.
·     The applicant lives in a village called [Village 1], which is in the District of Sanghar, in the State of Sindh. This Village is ruled by landlords who are all lslamic. His family resided under the rule of the chief landlord of the Village, Mr. [A]. [The applicant's Father] was employed by Mr. [A]. Mr. [A] was a Muslim but a tolerable man who did not mistreat the minority Hindu Religion. He had a lot of power and controlled both the Hindu and Muslim communities so that they were forced to live peacefully. He also opposed the Muslim Functional League (operating from Sanghar) and the Muttahida Qaumi Movement (operates from Mirpurkhass), which are fundamental Muslim Political parties. Both Sanghar and Mirpurkhass are located less than [number] km's from the village of [Village 1]. During his tenure, these parties were not able to harm Hindus in the Village of [Village 1]. However, he passed away a few months ago, around March 2014.
·     Since the time of his death, the fundamentalist Muslim parties have cast their influence on the Muslims residing in the Village of [Village 1] and since then there have been constant harm and threats to the Hindus residing in the Village.
·     In the Village [Village 1], an approximate population of [number] resides. From this figure an approximate number of [10%] Hindus reside. [The applicant's] family is one of the obvious minority Hindus. After the death of the chief landlord, the minority Hindus have been harmed in the following ways: Forceful Conversions to Islam, Kidnappings, Houses Raided and Graffiti Spread with Messages such as 'Kafir’, Non Believer', 'Enemy', 'Leave the place' etc.
·     The following has occurred to the applicant and his family:
o   His House has been attacked by Muslim Fundamentalists with Hate Messages plastered around the house such as 'Kafir - Non Believer', 'Enemy', 'Leave the place' etc. This has occurred on various occasions since November 2014 till Date. On each occasion, the applicant's Father has visited the police station to lodge a complaint but has been turned away. The Police are fearful of the dominating Muslim Fundamentalists and most are Muslim Fundamentalists themselves. Due to this, they refuse to lodge complaints bought by Hindus. It was only on the attack with occurred on the house on 02.01.2015, that with a lot of pressure, the police lodged a complaint and provided a brief copy to them.
o   His Family has also been threatened verbally that they will be killed if they don't leave the country. This applies to all Hindus living in that area. If the family or members of the family are walking in the streets, they are verbally abused and told to leave the country or convert to Islam or else they will be killed.
o   After his return to his hometown [Village 1], Pakistan on 05/12/2014 he found the situation in Pakistan very different from how he had left it. He saw his house and many other houses of Hindus vandalised with Hate captions. He was also abused verbally and given threats to life if he did not leave the country or convert to Islam. He has been threatened that if he does not convert to Islam, he will be kidnapped, and his parents will have to pay ransom. If his parents cannot fulfill the demand, he will be beaten and thrown into prison for the rest of his life until he changes his religion.
o   He has a [tattoo] which was scratched as it is 'haram' in Islam. He was abused for doing such acts and continuously threatened to convert. [The applicant] had complained of this incident to the police, but they refused to take any action as they agreed with the attack.
o   On 19.12.2014, he was grabbed and beaten by a group of anti-hindus in his Village. They called him 'kaffir' and threatened to kill him if he did not convert. They also threatened him lo gel rid of all things 'western' which he picked up during his stay in [Country 1]. He reported to the police who once again were reluctant to file a report but after much pressure, made a brief report.
·     His family also enquired from the Indian Embassy if they had chances of Migrating to India. However, the Embassy clearly told them that visas of many such Hindus were being refused.
·     Life became hell for the applicant and his family. They were not able to freely move around the village without being harassed. The applicant's father lost his job after the previous chief landlord died and no one else agreed to employ him.After much contemplation, the applicant had no option but to leave the country on [date]/12/2014 and arrived in Australia on [date]/12/2014. Meanwhile the applicant's family has had to flee the village from their own home as the threats and torture became unbearable. They moved to a nearby city, in a rented accommodation. However due to unemployment and because they have had to leave majority of their assets and savings behind, life is unbearable and impoverished for them. He and family are unable to move to any other city in Pakistan as life and discrimination against Hindus is prevalent in all cities. His elder brother resides in the city of Karachi, however he has also faced violence and threats from Islamic groups.    A police report of the applicant dated [date]/12/2014 outlining an attack on the applicant when he visited his brother in Karachi which was reported. The Police refused to use the words 'religious attack'.
8. The applicant provided supporting documents with his application form (and at other times) including what is stated to be photographic evidence of the [tattoo] having been scratched, evidence of violence against Hindus, Form 80, ticket booked [date] December 2014 to fly to Karachi [date] December 2014 to Sydney and then to return from Sydney to Karachi [date] February 2015, correspondence suggesting the family is not safe and they need to leave and he should not come back, a lease for a new house signed by the applicant’s father (January 2015), and a written complaint to the police signed by the applicant’s father complaining that there was an attack on his home (January 2015), a [December] 2014 complaint by the applicant in Karachi stating that 2 boys harassed him and snatched his purse with his ID card and his phone he was slapped and abused. Documents described as Media articles about the treatment of Hindus in Pakistan (from a variety of websites including dawn.com/ chakra news, as well as al Jazeera and The Hindu and about violence in Sindh state and about tattoos.
9. A letter dated 10 February 2015 from the applicant enclosing newspaper articles and police reports concerning:
·     On 20 October 2014 a report stated that earlier his father reported that his granddaughter [Ms B] had been kidnapped and now the person was in custody, and he should be released so that they can organise a settlement;
·     An attack on him dated [December] 2014: the applicant reported that people tried to attack and push and kill him, but he escaped, they called him Kafir;
·     On 3 January 2015 his father reporting that their home was attacked and things were broken.
An undated letter from the applicant (received by the Department 8 July 2015) attaching media articles of “Hindus, kidnapping, forced conversion, discrimination, and violence” [the Tribunal notes that many of the articles provided refer to Christians being the target of the blasphemy laws and extremists, although some articles, not published by mainstream organisations, refer to Hindus], videos, and an Affidavit from applicant’s father which stated that:
·     His [son] migrated to India on a 30 day pilgrim visa in June 2013 and did not return due to persecution/ discrimination received as a Hindu.
·     The applicant was affected by religious extremist and he was lucky to escape to Australia.
·     Their walls were written on in January 2015, they received threats to life from Muslim extremists and despite attending at the police station they but refused to lodge a report against Muslim extremists. After seeking help they received further threats. Muslim extremist are encouraged by the blasphemy laws.
·     In June 2015 the family applied for a pilgrim visa to India and this has now been granted. They will be leaving in July 2015, as long as they are not stopped by the Pakistani authorities.
Interview
The applicant was invited to attend an interview with the delegate on 10 July 2015. His claims included:
·     He fears harm because he is a Hindu in a majority Muslim country. He will be harmed by religious extremists because I am a Hindu, I don’t follow what they believe they follow Islamic way of life and I am a Hindu and I follow my own life being a Hindu. That’s the main one. They want me to convert to Islam and follow their own way of life.
·     When asked if harmed or persecuted on account of his religion in the past he said yes the first time was on [date] December 2014 which was when he returned to Pakistan after having lived in [Country 1]. There is discrimination, when he went to the restaurant or any hotel they ask you whether you are Muslim or non-Muslim. And so when you say you are non-Muslim they give you a cup in non-Muslims glass and then look at you in different angles and give you severe harassment. They call you kafir as well.
·     When the delegate said that this just appeared to be discrimination which was not very significant, the applicant said that he was attacked [in] December 2014 in his village. When the delegate said maybe they just wanted to rob him he said no because he has nothing. They also look at him like they want to harm him.
·     His brother lives in Karachi; the delegate said there is a large Hindu community in Karachi. The applicant said yes, they are large and they are being persecuted. His brother always got discriminated and so he did not send his daughters to school. All are at home. People tried to kill him or something, that’s why he is moving to India next year.
·     The delegate said that if things are as bad as claimed, why is almost the whole family still in Pakistan. The applicant said they can’t get passports and the delegate disagreed with this.
·     The delegate said that there are many false documents in Pakistan. It was also stated that country information does not state that every Hindu is being persecuted in Pakistan. There is some societal discrimination, but there is no state sponsored persecution. And where some individuals attack Hindus the government is quick to respond to protect Hindus. The applicant disagreed.
·     The delegate noted that he claimed he was coming to Australia for tourism but now he is saying that he was coming because of a fear of harm so he was not truthful in his representations to the Department. The delegate suggested that he had come here for economic reasons. The applicant disagreed with this.
·     He said his family was going to India; when asked why he didn’t join them there, he said that his passport is expiring and he doesn’t have a visa to go there.
·     When asked if there was anything else he wanted to mention he said that I would just like to mention that if I am refused and I go back there, people will try to kill me. First they will kidnap me and then they will try to convert me and torture me and convert to Islam. If I am refused they will kill me definitely. There are many cases already been, it not only in my areas, it is all over Pakistan I have articles and everything…. Hindus are being treated as third class citizens and there are hate messages
The delegate’s decision
The delegate did not accept that the applicant was a witness of truth and considered that he had fabricated his claims. Country information from eh DFAT Report as to document fraud being endemic in Pakistan was referred to.
Claims and evidence made to the Tribunal
The applicant changed his agent to his current representative.
He provided a new statement, submissions and documents. In his statement of 5 August 2022 he claimed that he is a poor Hindu, and that he has an ethnicity, Marwari (not previously claimed). His August 2014 visit to Pakistan was a turning point for him and he became involved in religious activities, however his parents asked him to stop because it would mean his life was at risk. So he returned to Australia. He then returned to Pakistan where he was attacked. He now works for [Employer 1] in Australia and has a relationship with a woman from [country] (whom he said was an Australian citizen; he provided a NSW relationship certificate).
He claimed to have undertaken numerous volunteering religious and charity activities and to have started expressing his opinion in Australia. He provided:
·     photographs of his attendance at volunteering activities for the Hindu Council of Australia, and charities in Australia, Sydney Marathon, Genes for Jeans and as well as supporting correspondence
·     Letters from a Hindu temple in NSW states that he has been a volunteer at the temple since 2015, involved in many social activities such as promoting Hindi festivals, digital and UT work , website and blogs, creating graphics, posters. He has inspired youth to work for the temple.
·     Letters from the National President of the Hindu Council of Australia states that he has been an unpaid volunteer since June 2015 and he has been involved in multiple roles which promote the Hindu faith and community work including [specified].
·     Hindu council Facebook page was provided showing various politicians and the Consul General of India speaking at festivals.
·     A pamphlet from the Hindu Council acknowledged the applicant among other contributors (such as Rotary).
·
Correspondence from the applicant to [a Federal Minister] thanking him for their meeting and forwarding articles including from his website and requesting that the Minister raise the issue of Hindu religious persecution in Pakistan with the (unspecified) authorities, and stating that the DFAT report ‘missed out critical points’ which affects Pakistani Hindus in Australia.

A psychologist’s report was provided indicating that after receiving the refusal of his protection visa application his negative mood symptoms increased. He has a diagnosis of major depressive disorder and post-traumatic stress disorder.
The applicant appeared before the Tribunal on 16 August 2022 and 28 September 2022 to give evidence and present arguments. The applicant told the Tribunal that his application form, submissions made to the Department on his behalf, his evidence at the interview with the delegate, his statement and submissions made to the Tribunal were all true and correct, and nothing was missing.
The applicant claimed at hearing that he is fearful of the Taliban, especially after Afghanistan collapsed, and that what he has engaged in in Australia, his activities are opposed to Taliban ideology. Further, the intelligence agencies will cause him harm because they may think he is a threat to Pakistan. This is because his family already left for India (who will be considered traitors) and the authorities may think he is raising consciousness and they will be aware of his view against the ideology of Islam. Further, enforced disappearances of Pakistan Hindus have occurred in his province of Sindhu.
The Tribunal asked the applicant when he started publishing his views against the ideology of Islam and he said that he started in Australia on [Social Media 1] in 2016. The first thing he did was to open a site called [Website 1]. He registered it in Australia in his name.
The Tribunal asked the applicant why would the authorities know about that when he was travelling through the airport, and he said that when he goes back they will question him. The Tribunal repeated its question: why will they know about it? and he said that once he is there they will check everything.
Further relevant evidence is referred to below, although the Tribunal has not engaged with all claims and evidence of the applicant given its findings.
CONSIDERATION OF CLAIMS AND EVIDENCE
Concerns with claims by the time the matter is being considered by the Tribunal
Credibility: The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70)
Concerns: The Tribunal had numerous concerns with the applicant’s evidence, some of which (but not all) are listed below. The Tribunal was concerned because although the applicant had the opportunity when making his protection visa claims in writing to the Department (including when he sent further letters himself directly to the Department in support of his case), and instructing his migration agent to make claims to the Department, and noting that he attended the delegate’s interview and was given the opportunity to tell the delegate anything else relevant, he did not make any claims to the nature and extent that he later made to the Tribunal.
The Tribunal does not give weight to the written claims/ documentary evidence that he provided to the Department for numerous reasons, including significant later inconsistencies about/ omissions of these written claims, and further the Tribunal has come to the conclusion (for reasons set out) that the applicant is not a witness of truth and that he is prepared to construct claims, and has done so in writing on numerous occasions. This concern applies equally to evidence he has provided to the Tribunal.
The Tribunal considers that his oral evidence to the delegate represents the claims he was able to recall, which were that:
·     When he went back to Pakistan in December 2014 there was discrimination which he felt when going into a restaurant/hotel; he was treated differently because he was not a Muslim.
·     When he was in his village he was attacked on [date] December 2014.
·     He visited his brother on that trip and his brother suffered discrimination.
·     His family were moving to India because they suffered discrimination/persecution in Pakistan.
·     If he returns, he will be kidnapped , forced to convert to Islam, and if he doesn’t, he will be killed.
The Tribunal considers that he did not mention to the delegate other claims that had been made in writing to the Department, and it considers that he did not recall them when giving evidence at interview most likely because they were not true:
·     the history of his village and why circumstances changed,
·     that he was verbally abused and called names,
·     his home has been attacked, defaced and the temple in their home was destroyed, his parents went into hiding,
·     his tattoos and western/modern lifestyle will cause him harm, and
·     he was attacked on [date] December 2014 in Karachi when he was visiting his brother.
There are other reasons for the Tribunal having concerns with some of these claims, which are referred to below; the Tribunal has also referred to below its concerns with new claims raised by the applicant.
New claim about his profile and activities during his return to Pakistan (and the village) in August 2014: The applicant claimed at hearing to have been “famous”, inspirational and active when he returned to the village during August/September 2014. The applicant told the Tribunal that he had travelled to many places, such as [Country 1], [Country 3], Australia, and so by the time he went back to his village in August 2014 his thinking had developed and when he went back to village and he saw the situation there, how the Hindus and his family were being treated and suffering and he decided at the time that he must do something for them. He called some of the people together one eventing and he told them it is their right to send their kids to school, to raise their voices against the Muslim landlords (whom he said are in control of everything) and in favour of their rights. He told them don’t forget their religion and they should raise their voice for all these things. He said that because he was the first person to talk about these things, he became quite famous in the village for his views. He also said that the Hindus had not been attending their temple for years and they had lost all hope for betterment. He said that he told the poor, lower caste people to attend the temple but they told him that they had not been going (for years) because they were afraid.
The Tribunal had concerns with these new claims, including that there was no previous mention of this. Further, when the Tribunal asked him what his suggestions were for the poor, illiterate people of his village, namely how they were going to take his advice to get educated when they had no money and no means of rising up against the Muslims, and that they needed to keep working for the Muslim landlords as they needed to put food on the table, he was not able to explain how he told the villagers that this could be possible for them. The Tribunal considered that if the applicant had engaged in such visionary work in his village, he would have been able to explain how he suggested to the villagers that his vision could come to fruition.
Further, the Tribunal put to him that it was difficult to understand how he could come to the village, where he became famous and known for his (anti) Muslim views, yet nothing happened to him to the whole time he was there. The Tribunal put to the applicant his assertions appear inconsistent with the context as claimed in the submissions to the Department: since the death of the ruler in March 2014 there had been forced conversions to Islam, ongoing kidnappings, homes were raided and graffiti spread with messages such as “kafir- non believer, enemy, leave the place. In the context, it is difficult to accept that he could be famously instilling anti-Muslim/pro-Hindu sentiment to the villagers, without receiving even a warning to stop what he was doing or being subject to kidnapping or forcible conversion himself. Further, his family’s home was not attacked or spread with graffiti. He responded that he was young and passionate and he didn’t think about these dangers. The Tribunal put to him that the point is that he was famously preaching against Muslims at this time, while Muslims were essentially uprising against Hindus, yet nothing happened to him or his family home. In response he said that he thinks the landlords were just “watching and thinking about him”, but it was in December when he came back that he was attacked. The Tribunal does not find this to be persuasive.
The Tribunal also noted that his claim that everything was good in the village for Hindus for a long time before the death of the ruler in March 2014 was inconsistent with his evidence to the Tribunal that the Hindus had not been attending the temple for a very long time. In response he said because the people were not being harmed under the old ruler, that does not mean they were going to the temples or schools. The Tribunal put to him that if it was his passion, as he claims, that the villagers should get an education and go to temple, it does not understand why he would not have mentioned these matters in his written claims if the villagers were not actually being educated or attending temple under the old ruler. He responded that he mentioned this to his agent but a lot of things were not included. The Tribunal put to him that he was highly educated and he had English language skills (the Tribunal notes that his certificate from [Country 1] stated that he had successfully completed his Bachelor degree and that the medium of instruction was English); he could have made sure this was in his written claims. He then said that he was depressed and he did not mention these things in detail. The applicant repeated this explanation on a number of occasions throughout the hearing, however the Tribunal does not accept it is true. The Tribunal considers that his new claims are inconsistent with his initial claims which undermines his claims and credibility.
The applicant’s new claim to be a passionate activist who wanted to help his community in 2014: The Tribunal had further concerns with the applicant’s new claim that helping his community in Pakistan had become his passion. The Tribunal asked the applicant what he had been doing in Australia in September 2014 and he said he felt bad about the community and was really thinking about the community. When asked why he decided to go back to Pakistan he said it was because he really wanted to help the community, to educate the people to bring about change, like a human rights activist, that was my plan, to get everyone on the ball, to raise that and solve the issues. However, when the Tribunal asked if the applicant had actually organised anything or made contact with people (including his family) or human rights activists working in the relevant field, or if he had any ideas or concrete plans as to how he could help the community, his evidence was vague, and he was unable to say what he had considered or researched. The Tribunal considers that this undermines his claim that he was a passionate activist who had been in Australia thinking about his community, with access to resources. It considers that he would have been able to explain his ideas or plans to help the community, given he was proposing to return to a dangerous context.
The Tribunal’s concerns were heightened because when asked whether he had actually done anything to assist the Hindu community, either in Karachi or in his village, his evidence was vague and evasive and he was not able to tell the Tribunal anything he had done (or tried to do) for the community on his visit back.
Inconsistencies and omissions concerning attacks in Pakistan in December 2014: The applicant told the delegate that he arrived back to Pakistan and spent a few weeks in Karachi applying for jobs. He didn’t get any call back so after a few weeks in Karachi, he went to visit his family in the village and that was when he got attacked. As noted above, the applicant made no claim at interview that he had been attacked when in Karachi. Further, the timing of the visit, first spending weeks in Karachi, then returning to his village, was inconsistent with his evidence to the Tribunal.
He told the Tribunal that he left Australia on [date] November 2014, he went to [Country 4] as a tourist leaving [date] December 2014 arriving then in Karachi. He only stayed in Karachi for a day or two and went back to his village. The Tribunal put to him that this was inconsistent with the attack in Karachi having occurred on [date] December 2014. He then said that his brother came to the village and collected him and brought him back to Karachi on [date] December (claiming that this was because his father did not want him in the village). This however was inconsistent with the evidence at interview which was that he only went from Karachi to his village; he had not suggested that he then returned to Karachi nor that he was attacked). The Tribunal also put to him that if he left the village for Karachi on [date] December 2014 because his father did not want him there, how did the attack occur in the village [four days later in] December 2014? He then said that he returned to the village ( a further movement that he did not suggest occurred in the delegate’s interview). The Tribunal put to him that it was difficult to accept that he would return to a village where there were attacks and kidnappings and forced conversions after he had already been attacked in Karachi. He said he wanted to see his mother. While this may be understandable, as put to the applicant his brother could have brought his mother to see him in Karachi. Given the claimed context in the village, the Tribunal does not find his response persuasive. It also does not accept his changing evidence as to where he went on this trip, nor that he was attacked in Karachi.
Concerning the attack in the village, the Tribunal asked the applicant what happened when he was attacked in the village and he said that he wanted to go to the temple but some people attacked him as he was easily identifiable, wearing different clothes. Too many people were hitting him and scratched his tattoo with their nails. He managed to escape by hiding in a fruit field. The Tribunal asked what they said to him and he said they called him kafir. The Tribunal put to him that according to his protection visa application form they had threatened him that he had to convert to Islam, and it asked him why he didn’t tell the Tribunal this. He said he must have unintentionally not included this. Given that this was a significant claim repeated on numerous occasions in his written claims to the Department, the Tribunal considers it difficult to accept that the applicant did not recall this claim when telling the Tribunal what had happened to him when he was attacked in the village.
The Tribunal considers that the above evidence undermines his claimed activities and that he was attacked in Pakistan when he went back.
New claim that he is a poor Hindu: The applicant made a new claim to be a “poor Hindu” in his prehearing statement to the Tribunal. Not only did the applicant fail to make this claim when his matter was before the Department, the Tribunal also considered that aspects of his evidence undermined his new claim. For example, when the Tribunal asked the applicant how much his scholarship to study university for 4 years in [Country 1] was worth, he did not know. The Tribunal put to him that it did not make sense that he did not know this. He said that perhaps it was worth more than “more than AUD 20,000” but he actually had no idea if it was 20,000, 30,000, 40,000 or 50,000.
Further, he said that he received $500 [Country 1] per month (pocket money)[2]. The Tribunal asked what he did with the money he said he would spend $100 and put the rest in the bank. He accumulated $8000 in savings from his pocket money by the time he left [Country 1]. The Tribunal put to him that if his family were as poor as he claimed it did not understand why he would not send his savings back home to his family. He then changed his evidence and claimed he did send money home. The Tribunal considers that if he had done so, he would have told the Tribunal this when asked.
[2] It was discussed at hearing that this was roughly equivalent to the same value of AUD: [deleted]
Further, the applicant then said that in Australia, in 2016 he started work for [Employer 1] where his salary was about $70,000 pa. the Tribunal asked what he did with the money and his answers were vague. He said that he would put it in the bank and then his family moved to India so he would give them some money depending on what they need, then he would have money in the bank and 2 years ago he started investing. The Tribunal asked how much he would accumulate every year in savings in his bank account after he started working at [Employer 1] and he said that he never looks in detail at his bank account, he was just focusing on work. The Tribunal asked if he could say approximately. He said he was hardly checking his bank account. The Tribunal asked if his savings increased and he said yes they were usually going up. When the Tribunal asked if he could recall anything about his balance he said he thinks he had more than $50,000 in 2018.
The Tribunal considered the applicant’s evidence did not indicate that he was a poor Hindu who came from a poor Hindu family. It indicated to the contrary; that he had a disregard for money, barely sent any money home, and was not interested in his savings. The Tribunal considers that the applicant made up his new claim that he was a “poor Hindu” (from a lower caste) family after his claims had been rejected by the delegate, and noting that the DFAT report indicates a more significant risk to poorer Hindus (albeit those from a lower caste). The applicant, although initially evasive in his evidence about his caste, finally admitted that he was from a higher caste[3]. The Tribunal finds that the applicant is prepared to make up claims in order to be granted a protection visa, which undermines his credibility.
[3] DFAT assesses that wealthy, high-caste Hindus face a low risk of official and societal discrimination in Pakistan. Lower-caste Hindus face a moderate risk of official discrimination (in the form of employment discrimination) and societal discrimination.
Failure to mention kidnapped niece: The Tribunal was also concerned that a significant claim, indicated by a supporting document, was not mentioned in either the written claims made by the applicant, nor in his oral evidence to the delegate. Father, he failed to make such claim to the Tribunal orally or in his statement or the submissions to the Tribunal. This claim related to the alleged kidnapping of his brother’s daughter [Ms B] (the subject of a 20 October 2014 police report made by the applicant’s father and produced by the applicant to the delegate).

When the Tribunal at hearing gave the applicant multiple opportunities to mention anything bad that had happened to anyone at any stage, he said no. It was only when the Tribunal put to him that this was a reference in the delegate’s file that he then said that in January 2015 his brother’s daughter was kidnapped by a Muslim in the village and she got released. The Tribunal put to him that not only did he not mention this in his protection visa application, at interview, nor was it in his updated statement to the Tribunal, he also forgot to mention this in his oral evidence. In response he said he did not mention it because he thought he had to mention what happened to him. The Tribunal did not accept this given he has made mention of his family throughout. The Tribunal considers that if he feared being kidnapped, which he claims, then he would have mentioned this well before he was reminded by the Tribunal at hearing. The Tribunal considers that this indicates that this claim, and the evidence that supports this claim (a police report dated October 2014), are untrue. A further reason for not accepting this claim and document is that the applicant claimed this occurred in January 2015, whereas the police report was made in October 2014.
The Tribunal has other concerns arising from his oral evidence to the Tribunal. The Tribunal considers that it is not necessary to list its further concerns, as, when considering the above, it is not satisfied that the applicant is a witness of truth as to past events and claims relating to what has occurred in Pakistan, either when he was there or since he has left. It does not accept that he has the claimed fears.
Other matters
While the Tribunal is prepared to accept that the applicant has had certain mental health diagnoses, it is not prepared to accept that these can explain the difficulties with his evidence. It notes that he has been able to work, and carry out numerous activities in Australia, designed to support him in obtaining a protection visa. The Tribunal does not accept that he has developed the diagnoses for the reasons he claimed.
The applicant provided support letters stated to be from people/ organisations in his home area, including for example the Hindu Panchayat in his home area. It stated that when he was in his hometown he volunteers at festivals and participated in prayers at temples. This was contrary to his evidence that the context of his home area was such that people were not attending temples. Another letter asserts that he assisted a person to obtain a higher education scholarship and that he had been organising education and motivational gatherings in his community in 2014. The Tribunal notes the availability of fraudulent documents from Pakistan as discussed in the DFAT report, and it does not place any weight on his supporting documents from Pakistan (or the person he claimed to have helped who was in [country], or his father, or any others).
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims, and that he has engaged in conduct in Australia for the sole reason of obtaining a visa.
FINDINGS ON THE APPLICANT’S CLAIMS
Country of reference
The Tribunal accepts that the applicant is a national of Pakistan and that the appropriate country of reference for assessing his refugee and complementary protection claims is Pakistan.
The applicant’s background
The Tribunal accepts that the applicant is a Hindu (noting his initial claim and his continuing work for Hindu organisations in Australia). It does not accept his new claim of a new ethnicity. It does not accept his new claim to be a “poor” Hindu nor that his family was poor, and it finds that he is from a high caste (which he finally acknowledged) family in Pakistan.
Credibility and the applicant’s character/motivation/passion
The Tribunal has found that the applicant is not a credible witness and despite providing a number of letters where people have suggested he is trustworthy, the Tribunal does not accept this is the case when he is engaging in support for his claims. The Tribunal does not accept that the applicant’s motivations have been the best interests of the community, rather it considers that his motivation has been acting in his own best interests. The Tribunal does not accept that he developed a different way of thinking from his time in countries like [Country 1], [Country 3] and Australia.
The claimed events in Pakistan
The Tribunal does not accept that the applicant returned to Pakistan and undertook any motivational work or expressed any pro-Hindu/ pro-religion, anti-Muslim/anti-rulers/government opinion. It finds that he has made up all his claims of his activities and adverse events in Pakistan and it does not accept that he was harmed, threatened, attacked, discriminated against, that his family home was attacked, that his family members had to move because of him or because of persecution or discrimination. It does not accept a new claim he made that his brother had been harmed because of him. If his family did move to India on Pilgrim’s visas it finds that they did so for a greater economic opportunity and/or because one of their family members had already moved there. It finds that the applicant has fabricated and relied upon fabricated documents such as letters, police reports and photographs of what he claimed happened in Pakistan. It does not accept that he left Pakistan because of fear or harm, nor does it accept that his family members have faced the harm or fear or discrimination claimed.
The applicant’s activities in Australia
The applicant did not suggest in his protection visa application nor in his interview that he would face harm for his activities in Australia. By the time his matter was before the Tribunal, however, this was his case. He claimed in the statement dated 5 August 2022 that:
It should be noted that even when I am in Australia, I always think about my community, people like me living in Pakistan and their day-to-day difficulties in carrying out their religion with freedom without restrictions. Therefore, I decided to categorise how extremism affected my personal life, people like me, and my family. I want to make a difference to these people living in Pakistan. Therefore, I voiced my opinion on freedom, free speech, involvement in human rights abuse, religious beliefs and Hinduism, opponent to sharia Law and supporter of western influence, raising my voice against Forced Conversions from Islam, discrimination & persecution of Hindus and minorities in Pakistan. It made me satisfied. It took a great time and effort and resources available to me during that time; utilizing my IT skills and things, I created a website and got involved online through social media.
My website domain name is [Website 1] and [name] a [Social Media 1] page. I believed the social media and website plays a critical role in drawling attentions to these cases at national and international levels.
The applicant provided confirmation of his payment for the domain name registration for the website [Website 1] (for various years such as 2016, 2020, 2021 and 2022). In his statement he listed 175 articles and links on this website. A consideration of the actual website (most recently by the Tribunal on 30 June 2023) shows a number of articles with titles criticising Pakistan such as [various titles deleted].
When the Tribunal accessed the website it observed that the majority of the articles inserted onto the website, when scrolling down, do not contain dates showing when the comment and article was posted on the website (although there are links to the actual articles containing the original information). This indicates that the articles could have been placed on the website at any time, including in order to provide the evidence that was provided to the Tribunal in August 2022, which seems likely given the lack of dates.
The Tribunal considers that this is a further indication that the applicant has created activity for the purposes of his claims (having registered the domain name in 2016 after attending an interview with the delegate in 2015 who had indicated he was not accepting of the applicant’s claims). The applicant has provided documents showing that he has been educated and employed in Australia in [field]. The Tribunal considers he has used his skills and knowledge to create information to strengthen his claims for protection. Nevertheless, the Tribunal has accessed the website in 2023 and it remains live, indicating that it has contained such articles criticising Pakistan and the treatment of Hindus for a period of time.
It is the applicant’s claim that he will face harm for expressing his opinion through social media/ on the internet. In his August 2022 statement he said:
I know that should I perform similar activities in Pakistan, I would be subject to punishment and accused of posting blasphemous content on social media platforms or freely promoting my religion, which is opposite to Islam.
In Pakistan, any person is at liberty to file a complaint against me solely because of my peaceful views or involvement in such communities. Even if a false claim should arise, I still fear I am at serious risk of facing persecution. For example, being jailed, killed, tortured, inhuman treatment, social isolation and so on.
I know that the government in Pakistan is monitoring [social media] to identify Pakistanis who may be posting material considered offensive to Islam so that Pakistani authorities can prosecute these people or pursue extradition on charges of blasphemy, tantamount to a death sentence.
This is official by the Pakistani Govt. as previous I have mentioned. My views and opinions are considered against the Islamic ideology, religious activities, and My profile, I would not be free from a well-founded fear of persecution in the other provinces of Pakistan.
The question is whether the authorities or others in Pakistan, such as religious extremists, would be aware that the criticisms on his website could be attributed to this applicant. The Tribunal discussed this at hearing and the applicant said that although he has undertaken some activities using his name ([Social Media 1 and 2), he had not posted extreme criticism in his name due to his fear that his sisters may be harmed. This led to a further concern with the credibility of his claims; as put to the applicant, if his brother had been tortured and then released because of the applicant as he recently claimed, it would expect that he would have given this as a reason for being careful not to publish harsh criticism under his name.
The Tribunal considers that the applicant’s actions have occurred to strengthen his protection claims. This means that the Tribunal will disregard all the applicant’s Australian activities when considering his refugee claims (s.5J(6)). The Tribunal accordingly disregards the applicant’s conduct in Australia in determining whether he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied, on the evidence before it, when disregarding this information, and having regard to the applicant’s profile, that the applicant faces a real chance of serious harm upon return to Pakistan as an upper caste Hindu from a well-off family who has studied and worked abroad and would return to Pakistan and attend the temple and obtain work (and who may have some tattoos). It does not accept that he would continue any of the charitable/ volunteering/ expression of his opinion activities he has engaged in in Australia upon his return to Pakistan because it does not accept that these have been done for reasons other than to strengthen his protection visa application.
The applicant does not meet the refugee criterion in s.36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The provisions of s.5J(6) of the Act do not apply to complementary protection. Thus, the Tribunal does not disregard the applicant’s conduct in Australia when considering whether he faces a real risk of significant harm in Pakistan.
The Tribunal does not accept the claimed adverse interest in the applicant since he has been in Australia:
· The applicant claimed in his prehearing statement that, as a result of his activities in Australia that he had received threats from Salam Yousaf on [Social Media 1]. He produced a [Social Media 1] printout (2016) where “Salman Yousaf appeared to be criticising the applicant for ‘making such a hatred page’” and while it is not clear what page is referred to, it appears to be the [Website 1] website. The Tribunal does not give any weight to this, noting that [Social Media 1] accounts can be manipulated and posts insert with dates falsified, and it considers that the applicant would be skilled at such manipulations.
· After the first hearing, at which the Tribunal expressed concern with aspects of his claims, the applicant provided new claims which he said he had just become aware of. It was claimed that he had been accused of blasphemy and his brother made a petition to the court because he had been tortured by people who were against the applicant. He provided various documents stated to have been from investigations/ court proceedings were provided. The Tribunal again notes that country information indicates that police and court documents can be fabricated, and the Tribunal considers the timing of these documents to be convenient, and it is not prepared to accept the same are genuine. It also notes that a document was produced which was said to be by an attorney and human rights expert in Pakistan but apart from these people self-declaring their authority, the Tribunal does not have independent evidence of the veracity of their claimed profiles before it, and does not give these documents any weight.
The Tribunal does not accept the claims that the applicant has already come to the authorities’ attention for blasphemy. It considers that the applicant has made up these claims and documents and that this further undermines his credibility.
However, the Tribunal must consider whether he actually faces a real risk of significant harm because of the activities he has carried out in Australia, which involves a consideration as to whether the authorities would be aware of these activities and take action against him in the reasonably foreseeable future. As a result of his online pro-Hindu/anti-Muslim/anti-government activities in Australia, the Tribunal is not able to exclude that there is a is a small but real risk of the Pakistan government being aware of his activities in Australia.
Risks to persons who post on websites/ social media
The DFAT report states:
DFAT assesses journalists in Pakistan face a high risk of official discrimination in the form of censorship and harassment. Journalists who report on sensitive issues, including criticism of the military, government or militant groups, sensitive religious topics or the PTM, face a moderate risk of enforced disappearance and violence. Female journalists face a high risk of online harassment and sexualised threats, over and above the risks also experienced by their male colleagues. DFAT assesses that people who post articles on social media criticising the security forces or armed groups face a moderate risk of official discrimination and societal violence, although this depends in part on their prominence. Social media use and commentary is widespread, and low-level commentary by obscure activists is unlikely to attract attention.
The Tribunal does not consider that the applicant is in the same category as a journalist. It does accept that he could fall within the DFAT assessment of people who post articles on social media criticising the security forces or armed groups face a moderate risk of official discrimination and societal violence, although this depends in part on their prominence. The questions remains as to whether he would come to the attention of the authorities.
The Tribunal asked the applicant whether, if his case was refused, he would return voluntarily. He initially said yes, and then changed his mind and said no. The Tribunal notes that the DFAT report states:
Returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistani law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally.
The Tribunal considers that the applicant’s change of evidence may be connected to this. Nevertheless, there may be a chance that the applicant will refuse to return which would lead to him being returned involuntarily. The Tribunal notes that the applicant has been out of Pakistan for a long time, in a Western country, and that he is Hindu, and that there is a risk (albeit low) of official discrimination against Hindus. The Tribunal has considered whether there is a real risk that the authorities will be motivated to investigate the applicant and his online activity, or indeed whether they may already be aware of his online postings on his website/ [social media]. Freedom House notes that the Pakistani government continued to tightly control the online environment, and online activists and journalists are often subjected to harassment, including some cases of physical assaults and enforced disappearances. This indicates that the authorities do monitor the internet. Recent developments were stated as follows:
The Pakistan Telecommunication Authority (PTA) blocked TikTok from July to November 2021 and authorities reported that, after being unblocked, the platform systematically removes content flagged by the government for being immoral or indecent...
In May 2022, a court charged the new government with amending the Removal and Blocking of Unlawful Content (Procedure, Oversight, and Safeguard) Rules to protect free expression. The Rules were passed in October 2021 and create onerous requirements for social media companies to moderate content, provide authorities broader power to censor online content and undermine encryption, and impose data-localization requirements….
In February 2022, the government broadened the definition of defamation under the Prevention of Electronic Crimes Act 2016 (PECA) to include corporations and public authorities and increase the punishment under that provision; courts issued conflicting judgements on the constitutionality of the amendments….
A woman was sentenced to death in January 2022 for allegedly sharing blasphemous material on WhatsApp and Facebook, and several others faced ongoing death penalty convictions in online blasphemy cases ….
In June 2021, a draft of the Pakistan Media Authority Ordinance, which proposed centralizing regulatory control over electronic, print, and social media, was walked back by the government after significant pushback from media and civil society groups. The Ministry of Information and Broadcasting formed a committee to further discuss the proposal. It remained under consideration during the coverage period.
Apart from PECA and new social media rules, other regulatory provisions have long enabled politically motivated censorship of dissenting voices and information perceived as damaging to the military or political elites. Broad provisions in the 1996 Pakistan Telecommunications Act support censorship for the protection of national security or religious reasons. A telecommunications policy approved in 2015 enables the PTA to monitor and manage content that is blasphemous or otherwise in conflict with the principles of Islamic way of life, as well as content that is “detrimental to national security, or any other category stipulated in any other law.” Section 99 of the penal code separately allows the government to restrict information that might be prejudicial to the national interest. …
Concerns around social media monitoring spiked in March 2019, after the Ministry of Interior ordered an investigation into what it defined as a “targeted social media campaign” against Saudi Arabia while Crown Prince Mohammed bin Salman was visiting Pakistan. The ministry’s order identified journalists and activists who allegedly shared messages that were “very disrespectful” to the crown prince because they included images of murdered journalist Jamal Khashoggi.
According to a 2015 Privacy International report, the government has had access to network surveillance technology from companies like Ericsson and Huawei since 2005. A 2013 report by Citizen Lab indicated that Pakistani citizens may be vulnerable to FinFisher spyware, which collects data such as Skype audio, key logs, and screenshots, though the extent of its use and who may be using it remained unclear.
Companies are required to aid the government in monitoring internet users. There is currently no data protection law in Pakistan. As a result of this lack of oversight, ISPs, mobile service providers, and private enterprises are not obliged to maintain or comply with any data protection policies that are in place
The military routinely abducts individuals for their reporting or activism, and in recent years has used this practice on social media activists.
Free expression activists, bloggers, and online journalists have reported being attacked and receiving death threats online and offline, and Pakistan is one of the world’s most dangerous countries for traditional journalists.[4]
[4] type="1">
Having regard to the above, the Tribunal cannot exclude that the government may investigate the applicant upon his arrival and may find out (or already know about) his website, and that it is being operated by him. The Tribunal accepts that the content on the website could be seen as blasphemous by the Pakistan authorities. Country information produced by the applicant refers to a man being sentenced to death for blasphemy on Facebook. The DFAT Report states:
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. The 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.
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.
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.
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.
Accused blasphemers are at risk of extrajudicial killing, before, during, and after being taken into custody.
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.
The Tribunal thus considers that there is a small but real risk that the applicant will be investigated upon his return by the authorities, that they will find out about or be aware of his conduct in online activism promoting Pakistan Hindu rights, and making strong anti-Pakistan government and anti-Islam statements and criticism, noting that his website appears to have been [designed] to attract adverse attention, and that he may be considered to have been blasphemous. The Tribunal accepts that this means that there is a real risk that the applicant will face significant harm in the form of physical harm and harassment and possibly enforced disappearance and harm, noting the DFAT Report states:
Enforced disappearances have occurred in Pakistan for decades, but reportedly worsened after 2004…Those targeted for disappearance include suspected militants, activists, students, opposition politicians, human rights defenders, journalists and lawyers. Disappearances can last as little as hours and as long as years. Some disappeared individuals are killed. Those released are often reluctant to talk about their captivity. Many are reportedly tortured and suffer permanent disabilities and long-term psychological trauma. Security services sometimes identify themselves to their victims and, in rare cases, have publicly admitted to holding disappeared individuals…
The Tribunal is not satisfied that the applicant can access state protection and it considers that this is likely to occur on his arrival, and that he cannot relocate, and that this is personal to him.
The Tribunal finds that for the purposes of s. 36(2)(aa) of the Act there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Pakistan, there is a real risk that the applicant will suffer significant harm because of his activities carried out when in Australia.
For these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Christine Cody

Member

CRITERIA FOR A PROTECTION VISA
1. 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.
2. 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.
3. 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).
4. 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.
5. 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
6. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3286

30 June 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies