1800941 (Refugee)

[2022] AATA 4409

1800941 (Refugee) [2022] AATA 4409 (26 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1800941

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:26 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 September 2022 at 11:20am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – atheist of Shia Muslim background – harassment, bullying and beatings by student, local and religious communities – no involvement in atheist groups in Australia – music as community and expression of atheism – country information – 1 in 10 Pakistanis ‘not religious’ – atheism not illegal but subject to widespread use of blasphemy laws – real chance of serious harm but modification of behaviour minor and not unreasonable – not innate or immutable and engagement with others not an inherent part of it – political opinion – opposition to religiously-influenced state, society and interference in daily life – not reasonable to modify behaviour on this ground – state protection or relocation not available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), (3)(a), (b), (c)(i), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
EUW19 v MICMSMA [2021] FCCA 11
Prashar v MIMA [2001] FCA 57

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, which I accept, applied for the visa on 8 June 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the country information supported a view of Muslims who lost their faith, but did not convert to a new religion, faced a well-founded fear of persecution or a real risk of significant harm.

3. The applicant appeared before the Tribunal on 17 June 2022 to give evidence and present arguments.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   Criteria for a protection visa

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    Procedural Matters

11. The applicant wrote in a pre-hearing submission that he has ‘suffered from anxiety and depression that I have been attending psychological counselling for since 2018. I’m no longer seeking assistance from my psychologist since late February 2022. I have decided to learn from all the information my psychologist had provided me and put it to practical use.’

12. In a letter dated 20 December 2018 the applicant’s then psychologist noted that the applicant has post-traumatic stress. Since the writing of the letter the applicant had seen his psychologist 17 times according to a statement prepared for the Tribunal. In this letter the psychologist concludes by writing that ‘Since our last session (on the 18th of February 2022), [the applicant] reported that he is feeling less stressed and more pro-active as he is beginning to reintroduce activities that provoke fulfillment and joy such as singing lessons and reconnecting with friends.’

13. In advance of the hearing the applicant’s representative requested that the I take into considerations the Tribunal’s Guidelines on Vulnerability, which I confirm that I have.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF Claims and evidence

    Evidence and findings of fact

15. The applicant is a [Age]-year-old Pakistani male from Karachi who claims to have departed from a belief in Islam and instead has adopted an atheistic belief that has in the past and will into the future lead him to face serious harm.

16. In the protection visa application form the applicant outlined his claims as being:

    I left the country to get quality education, however, I was severely being mistreated over there. The college I went to had unions of students who were also members of political and religious parties. My opinions were quickly spread and I received unwanted attention from these groups. I was constantly harassed and often bullied and beaten for carrying beliefs of an Atheist. I also received similar treatment from my local community and also from the religious community that I had been a part of.

    I certainly do not believe that Pakistanis would be willing to accept me as a part of the community. I will definitively receive cruel punishments based on my belief. I was declared as a non-believer only for questioning some crucial parts of the religion which resulted in mistreatment of me. It is fairly obvious that the same pattern will continue and that I will be denied basic human rights. During my visit to Pakistan in 2014, I was beaten by people from local mosque and I also received threats from unknown people and I’m not willing to take these threats lightly.

17. In a statement accompanying the application form the applicant provided more details about his past views on Islam and religion more generally. He wrote that he was born and raised Shia Muslim, but his family weren’t well educated. As questions arose in his mind about their faith he sought answers from Islamic scholars. Through this process he came to the conclusion that there is a lot of hatred between the different sects in Islam.

18. At around the age of 17 he claims to have come to the realization that Islam was right for him and he committed himself to practicing it as was expected. But upon seeing a parent use a knife to cut their child as a part of the commemorations of Imam Hussain during Moharram the applicant lost his zeal for the religion.

19. The applicant attended a Catholic school from year [Number] through to year 10. He changed schools as the Catholic school did not have years 11 and 12. He emphasised that Catholic children were taught Catholicism whereas the Muslims, who comprised 2/3 of the students learned Islam.

20. The applicant described some clashes at college (year 11 and 12) with Islamic extremist groups due to comments he had made in class. As he was not required to keep his attendance to be enrolled, he decided not to attend the college to avoid further clashes.

21. He said that he would have fights in his neighbourhood over his Shia belief. He claimed that others tried to lure him into saying things against Sunni beliefs. 

22. At this stage of his life, he was not perceived to be a non-believer, until his return to Pakistan in 2014. He said that in his mind he transitioned away from believing in Islam sometime after 2013.  

23. At the hearing he noted how near his home there was a Sunni mosque and while he was hanging out with friends in the area and they would go to the mosque, he would not, as his parents taught him that their Shia mosque was the appropriate mosque to pray at. But the applicant explained that their mosque was some distance away. There was no claim that his rejection of attending the closest mosque while others went, caused him any harm.

24. Supporting statements were received from the applicant’s mother and two Australians, [Mr A] and [B]. These submissions aligned with the applicant’s statements on his past life and his current beliefs. 

25. Perceiving the applicant to be a credible witness I accept the above recollection of his past as fact.

26. He wrote that when he stopped practising as a Shia it was difficult for him. He wrote that he would enter into debates with those he disagreed with which sometimes led to ‘heated arguments and some would result in a physical fight’. He wrote that he was disliked in his hometown and sometimes excluded from social sittings because of his views. He claimed that his experiences led him into depression, he had no friends, and he began to hold suicidal thoughts along with anxiety. But through his cousin he met others who held similar thoughts. I accept this recollection of the past as fact.

27. He wrote that his mother realised that he had found much to disagree with in Islam, but she encouraged him to remain silent and they managed to maintain their relationship without discussing those issues they disagreed on. The applicant claimed that he learned that he couldn’t raise his voice and/or try to correct everyone though he wasn’t afraid to share his opinion which led to the ‘typical hatred of society being turned on me.’

28. While still living in Pakistan he was present when two bombs exploded in his city which made him realise that he couldn’t remain in the country. By the time the applicant left for Australia [in] May 2012 he said that he had ‘witnessed the most cruel attitude in that society, non-acceptability of a person with a different political or religious belief is common.’ He wrote that he realised that ‘a life spent practising religion is a life wasted,’ and that ‘religion wasn’t making a positive difference in anyone’s lives.’ He explained that during his stay in Australia he felt accepted by society and that it presents an ‘opportunity for me to freely be who I desire to me was a wish come true.’

29. In June 2014 during the Muslim month of Ramadan he travelled back to Pakistan where he claims he encountered two incidents. He described himself at this time an agnostic. He wrote, ‘I had adapted different norms, became a non-believer, and also had enough courage to appear as I wanted to be, all of this wasn’t appreciated by my community.’

30. Regarding the first incident, he wrote:

    In the first week of July 2014, I was eating a snack in the streets when I was beaten by three guys. The constantly cursed at me and stated that I was a Kafir (non-believer) to eat during the month of Ramadan on the streets. These guys belong to a local mosque which actively participate in such activities. I tired to report this to the police station, they however taunted at me by stating the same thing that I should not be eating in a public place during this month.

31. I asked the applicant at the hearing why he chose to eat the sandwich on the street. He responded, ‘why shouldn’t I, it’s a free world.’ He said that he understands that some people may be offended, and that the person who is eating should be more considerate of people fasting. I asked why he didn’t hold the food until he entered his apartment. He said that he was hungry and that it wasn’t a big meal.

32. In the pre-hearing statement, the applicant added details to his recollection of the first incident:

    The first incident was described that I was beaten by three guys on the street whilst eating a sandwich. This was a reaction to a conversation I was having with a group of people outside of my apartment building the day before where [Mr C] was present. There were a few people there, some that I knew and some I didn’t, in total around 10 people. As this was a month of Ramadan, topics of discussions generally are a bit more focused on religion. During this conversation, I made some comments which had to do with one of the prophet’s wives, and even though in my opinion my comments weren’t offensive, it apparently did affect some people in that group and specifically with [Mr C]. I noticed his behavior suddenly change and I realized that I might have seriously offended some people. I tried to defend my words but then I realized it’s better to leave.

33. At the hearing the applicant repeated these claims adding that he had said that if he’s eating it doesn’t mean that others have to. Regarding the confrontation, he said that one person grabbed him, started cursing him, slapped him on his face, tore his shirt apart and called him names telling him that he shouldn’t be eating. This continued until a guard from the apartment block came across and calmed the situation and helped the applicant come inside.

34. Reflecting on the reaction he received the applicant wrote that he believes that under normal circumstances even during Ramadan someone eating outside would not garner the type of response he encountered. He believes that both incidents are related to a conversation he had with [a Mr C] who was from his local area.

35. At the hearing he said that he had seen [Mr C] in the neighbourhood undertaking tabligh, a form of proselytising by going door to door inviting people to the mosque. He believes that an earlier discussion with [Mr C] preceded the attack, and he believes that it was as a result of that discussion that he was attacked after being seen eating the sandwich.

36. I accept that the first incident occurred as the applicant has described.

37. Regarding the second incident, in the protection visa application he wrote:

    After approximately one week another incident happen where some random men on motor bike approached me on the street and pulled up a hand gun on me and started cursing. For a moment I thought they will kill me, then a truck passing by honked loudly and I managed to run away from them. I was too afraid of reporting this to the police as my last request for incident reporting was declined.

    After this incident I mostly spent my time at home as I was terrified of being harmed.

38. At the hearing he explained that it was in the evening and he was heading towards a cigarette shop when he saw on the other side of the road a couple guys on a motorbike. He saw that they were observing him. He said that they turned their bike towards him, drove towards him and ran over his foot. He said that they swore at him, asking why he was backing off from a confrontation. He said that he initially thought that they wanted to rob him, but a passing truck’s horn distracted them. At this point he ran away. He thinks that he heard someone loading the chamber of a gun. He managed to get away by running into a building.

39. Based upon the applicant’s evidence of this incident I find it speculative to presume that it was related in some way to his actions. The applicant was not physically harmed. No shots were fired. Nothing was said that would indicate that he was known to them. I find this to have been a random opportunistic event that failed due to the passing truck.  

40. It is relevant to engage with the applicant’s views on religion as they form the basis of subsequent relevant considerations relating to the feared harm.

41. Regarding the applicant’s views on Islam, he wrote:

    I strongly disagree with Islamic way of life, it is impossible for their book to be the words of God, as its merely 1400 years old. I rather opt to believe the scientific justifications of this universe and I'm greatly interested in cosmic science and physics which are the true answers for this world.

42. In correspondence with the Tribunal the applicant refers to ‘Islamic fairy tales’ and provides a list of his strong views on ‘Islamic tales’ which includes some central to the Islamic faith such as the Haj, praying five times a day and the change in the location towards which Muslims pray (Quiblaa).

43. I accept that the applicant does not agree with the claims of Islam. I also accept that he has a dismissive approach to others who do, which could be offensive to some.

44. Regarding religion in general, he provided a list of evidence that undermines the foundations of the Abrahamic religions. He concludes this recitation of evidence against the Abrahamic religions by writing, ‘I find all the evidence in the history of religion to not be credible and most importantly quite contradictory. Therefore, it is fair to conclude that the theistic God is a hoax.’ In another passage he writes that, ‘It brings me to a conclusion that any and all such delusions should be removed from our lives.’ He wrote:

    I also believe that religious indoctrination of children should be considered a violation of human rights because no adult of a sane mind without the indoctrination would ever willingly adopt religion.

45. At the hearing when he was asked what his thoughts were about people in Australia who hold religious views, he said, ‘there is a very big difference between how society works in Australia and how it works in Pakistan, in Pakistan everyone is involved in everyone else’s business, in Australia that is not the case. If I know you, I don’t have to know what rituals you do. Whatever rituals you do is your business.’

46. When pressed on this opinion on believers in Australia, he said, ‘they can absolutely do what they like, I don’t have a problem with that, I am not saying that a particular religion or a particular body, for instance a mosque or a church should be removed from Australia, they are free to do whatever they like, as much as I am free to do what I like, as long as they are not invading each other’s freedoms.’

1. I put to him that it appeared that he was saying that in Australia he hadn’t sought to go out and correct the views of believers and to tell them that they are wrong. He responded, ‘I personally do not have any interest in going out there, out of my way, and attacking people. I absolutely have no intentions.’

2. He then went on to recall instances in Melbourne where he entered into arguments with Muslims who were going door to door to invite people to the mosque. He described one instance where he had politely decline their invitations but they persisted and so the discussion escalated. In another instance he described how Jehovah Witnesses came to his door, but he simply told them that he would not read the material and that upon hearing this they politely left. Upon reflection, he said that he regretted not engaging them in conversation.

3. I accept that the applicant does not agree with the claims made by religions in general. I also accept that he has a dismissive approach to others who do, which could be offensive to some.

4. Regarding atheism, he wrote:

   Atheism is the belief in the rejection of the existence of any theistic gods or deities. Atheists also reject the idea of faith-based thinking and rather opt for independent and analytical thinking. It also insists on the fact that the burden of proof is on the theist to prove the existence of such gods or deities.

5. I note that the applicant’s own understanding of atheism is grounded in the rejection of religion.

6. Regarding his debates with people on religion, he writes in his post hearing submission:

   This view is not to hurt someone's feelings but to assist them with finding the truth and not just to win a debate. This is also the very reason why people from Pakistan had chosen to terminate contact with me – because all I wanted was to help them with their problems and the discussion always leads back to religion and the need for people to let go of these imaginary rules. I believe that religion causes more problems than it solves and therefore these people need to be helped.

   …

   My disagreeableness does not amount from the lack of respect for the Pakistani culture, but instead from having better knowledge and a more superior belief system than them.

   …

   accepting an invalid argument from a religious person 'just to be polite' is unfair.

7. I have some doubts regarding the applicant’s claims of needing to help people find the truth by debating with them. In addition to the above, the applicant wrote, ‘Since we've concluded that monotheistic religion and theism is a hoax, therefore it is very important to spread this information when the opportunity presents itself.’ And yet when in Australia he has done little to spread these ideas. The applicant wrote in his pre-hearing statement that he has not been involved in any atheist groups ‘for some time’. In the Departmental file the evidence suggests that the applicant joined the Atheist Foundation of Australia in March 2017. At the hearing he said that he did not formally engage with them other than looking at their website. He did not attend any meetings.

8. At the hearing he said that a long time ago he used to have social media but not after becoming involved in arguments with his Pakistani friends via social media and being told that he had forgotten his roots. The applicant confirmed at the hearing that he does not have any formal associations with atheist groups.

9. In his post-hearing submission he explained, ‘Countries like Australia, which are mostly atheist, do not have a need for an individual like myself to spread this information. I personally have argued with some Pakistani people I've met here, but because I had the option to not be around them, so I opted for it instead.’

10. This logic is undermined by evidence provided in the post hearing submission which is data from the Australian Bureau of Statistics showing that over thirteen million Australians identify as religious and just under ten million as having no religion. That is thirteen million people the applicant could engage with to relieve them of their misunderstanding. Yet, in the nearly ten years that the applicant has been in Australia, eight years of which he was a confirmed atheist, he has not done anything in this regard. Instead, according to the applicant’s evidence, he has discussed religion with other atheists within the rock and roll scene. 

11. I do not accept the applicant’s claims that he has a need to spread information to others. I do not accept that in the applicant’s view he has an obligation to help others see the world the way he sees it. I find that the applicant’s atheism as practiced in Australia is a private belief that he enjoys engaging in discussion with others socially, but it is not such that there is a sense of obligation to do so or that his world view compels him to. 

12. The applicant’s brother joined him in Australia in 2013. The applicant believes that this was with the intention of his parents to have his brother police his activities. Due to their disagreements the applicant has an ‘on and off’ relationship. He claims to be close to his mother who accepts him.

13. The applicant identifies with the local music scene including rock and heavy metal and referred to it as his ‘tribe.’

14. The applicant does not believe that he will be accepted by his family, other than his mother, were he to return home. He explained that his family were religious, especially during Muharram and Ramadan.

    Considerations

15. The applicant fears physical harm and an inability to earn a living arising from the community’s intolerance of people who hold views such as he does. He also fears the state due to their blasphemy laws.

16. We discussed the difference between cultural aspects of Islam and the individual practices of adhering to the Koran. I put to the applicant that the cultural aspect extends into the norms a community accepts such as during Ramadan agreeing that you don’t eat in public so as not to tempt other people and to express piety as a community. I asked why he wouldn’t be able to respect that cultural aspect. He responded that it is not just that aspect. He said that there are unspoken rules, but even those who understand these rules wouldn’t expect a violent outburst such as he encountered. He rhetorically asked why he shouldn’t have the freedom to eat outside and why should their cultural right not to be offended trump his right to live freely. He said that he doesn’t want to adapt. When I asked if he could not adapt to not eating in public during Ramadan, he responded, ‘there is some room for me to do that.’ I asked if he could avoid smoking in public during Ramadan, he said, ‘I could try and hide’. I asked why he couldn’t not attend Muharram processions and turn a blind eye to what happens. He said that ‘It would be very difficult. It would mean avoiding everyone.’

17. I put to him that in Pakistan society there are atheists[1], there are agnostics, a large minority of the population who don’t attend mosque and there are many who only attend public religious gatherings.[2] I asked why he couldn’t find a path that would be true to himself but at the same time forge a path that doesn’t expose him to risk. He responded, ‘practically it would be very difficult to achieve that because I would not be able to find a place to isolate during that period.’

    [1] Muhammad Adnan Faysal, Dr Rashidah binti Mamat Dr Shukri Ahmad, ‘Understanding the Argument of Atheists in Pakistan (An Analytical Survey of University Students)’ Journal of Islamic Thought and Civilization, Vol 11 No 2 (2021)

    [2] World Values Survey, Wave 7 (2017-2022), Code Book and Results Pakistan v.3.0 (2018) Question 171

18. I put to him that in Australia he acknowledged that he didn’t feel that he had a need to argue with people of faith but in Pakistan he is claiming that he has a need. He said because ‘you can’t escape.’ He explained how in Australia you may not know the names of the people living next to you, but in Pakistan, everyone knows everything about their neighbours.

19. I noted that 1 in 10 Pakistanis identify as being ‘not religious’ asking if they are all being harmed.[3] The applicant responded that being not religious is different to being an atheist.

    [3] ‘Losing Our Religion? Two Thirds of People Still Claim to Be Religious’, Gallup International (Bulgaria), 8 June 2015

20. I noted that atheism is not illegal in Pakistan, but publicly professing it can be seen as apostasy. One atheist interviewed on BBC said, “If you're willing to do certain things - have etiquette, respect your parents and be appropriate in public - you can get away with being a disbeliever.”[4] The applicant responded that it depends upon the family’s dynamics and if you’re living in a posh area and have a limited circle of human interaction.

    [4] Pakistan’s Secret Atheists, 12 June 2017, >

    At the end of the hearing the applicant recalled an instance where he was questioning the Prophet’s taking of Aisha as a wife at the age of 6 or 7 and consummating the marriage at the age of 9 noting that this would be considered as paedophilia in these days. The consequence of this comment was that his interlocutors were upset by this and he was chastised by the same [Mr C] mentioned above. He said that they did not let him defend his point and instead he apologised for having upset them and left. The applicant expressed remorse at the hearing for not having a chance to defend his point.

21. The applicant’s experiences of harm in 2014 do amount to serious harm. In addition, country information in the form of an article on the BBC explains the high risk that atheists face in Pakistan. The article notes that the reach of blasphemy laws is omnipresent including for reasons of posting material in private online chat forums. It notes that in 2017 Taimoor Raza was sentenced to death for posting blasphemous content on Facebook. A 2022 article was also provided by the applicant’s lawyer which described the situation of a Christian mechanic who was sentenced to death for claiming that Jesus is the true prophet after his customer demanded a discount for being a Muslim. The article notes that the authorities are yet to carry out a death sentence for blasphemy. As such I find that the applicant faces a real chance of serious harm for reasons of his atheism.

22. Having accepted that the applicant faces a real chance of serious harm, I now turn to considering whether the reason for the serious harm is one of the five reasons of s 5J(1)(a) and whether it is the essential and significant reason for the harm.

23. I have identified two strands that lead to the applicant facing harm. The first is that the harm the applicant faces is for reasons purely arising from his disdain of religion. In such a scenario the essential and significant reason for his harm would be his atheism. The applicant arguing with neighbours or offending them through his actions during Ramadan in turn generates a violent response which aligns with this strand.

24. The second is that some of the harm he faces arises from a religio-political view of the world. In this scenario the harm arises from his objection to a state that imposes religion onto the people in such a way that they enforce compliance upon each other. In this case the essential and significant reason is political. The harm he faces for political reasons arises from his reaction to this environment and society’s efforts to ensure he conforms including for example by being accused by someone in society and charged by the state with blasphemy.

    Essential and significant reason - atheism

25. Accepting that some of the serious harm the applicant faces arises from his atheism, I now turn my mind to consider s 5J(3) of the Act, namely whether the applicant can be expected to modify his behaviour to avoid serious harm.

26. It is important to extract the relevant sections of the text. Firstly, s 5J(1)(a) places religion as a protected attribute:

    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;

27. I acknowledge the proposition first espoused in 2001 by Justice Madgwick that the refugee Convention ground of religion also covers persecution arising from non-belief:

    The Convention speaks of a "well-founded fear of being persecuted for reasons of ... religion ...". In my opinion, if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief. The Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves.[5]

    [5] Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 57 (7 February 2001)

28. To understand the place of non-believers in the scheme of Australia’s protection regime it is necessary to grapple with the question of not only what non-believers believe, but also what action is inherently intertwined with that belief. This is not to test whether atheism meets the definition of a religion, but rather because the nature of the protection regime requires an understanding of how a potential persecutor may identify another person so as to cause them harm.

29. The Act requires that for Australia’s protection obligations to be triggered there must be a persecutor from whom arises a real chance of serious harm in the case of s 36(2)(a) or a real risk of someone causing significant harm upon a person in the context of s 36(2)(aa). The combination of a persecutor and intentionality requires more than a test of the beliefs of atheists, it requires a test of their actions and whether they are tied to their beliefs such that a potential persecutor would be intent on identifying and harming them.

30. How are atheists obligated to live? What are the obligations imposed upon atheists? For believers in a religion there are traditions such as the Hadith and Sunna, the sayings and life of the Prophet respectively, in Islam. In Christianity there is the Bible, teachings of the Church Fathers and declarations of the Councils. Hindus have narratives that recall the knowledge and wisdom of the gods. These books and traditions explain the faith and give guidance to people of faith as to the manifestation of their faith.

31. For atheists, particularly of the type the applicant has described himself to be, the path is less clear as the belief is in opposition to faith.

32. I invited the legal representative to provide some clarity on this question. In post-hearing submissions the definition of atheism was provided from the Oxford English Dictionary: ‘Disbelief in, or denial of, the existence of a God. Also, Disregard of duty to God, godlessness.’ I note that there is no reference to proactive action, but rather a disbelief or denial along with a disregard of the duties. Denial can be an action, for example, were the applicant required to announce his religion on an official form, he may choose to deny having one. Or alternatively, were some people to ask him about his faith, he may choose to respond by denying having a faith. A Macquarie Dictionary definition of atheism was also provided with similar terms.

33. The legal representative also provided a chapter from an academic book, ‘Practicing Atheism,’ by Hannah Scheidt published by the highly respected publishers, Oxford University Press. Recognising the scarcity of action associated with atheism Scheidt describes her book as providing a focus, ‘on the tensions that characterize the cultural work of “engaged” or “active” atheism: the work of assigning affirmative content to a designation that is, in itself, defined by negation.’

34. The examples of action provided in Scheidt’s chapter range from posters that include statements such as “Moral, loving and generous—without religion!” to examples of provocative statements such as “Free of faith, fear, and superstition”; “No magic. No miracles. No imaginary friends”; “Religion is a collection of man- made fairy tales”. She refers to ‘rituals’ of atheists as being caught in a dilemma in that atheism has rejected rigid normativity but to give it more social and cultural substance it requires structure.

35. In the chapter provided to the Tribunal she examines debates noting that ‘A fascinating ambivalence characterizes debate among atheists, as many proclaim that debates are “pointless” even as the events draw large viewership and inspire extensive conversations.’

36. The second article provided in submissions was a newly developed tool that measures experiences of discrimination against atheists.

37. The third is another tool developed to measures the degree of concealment that atheists undertake. The applicant’s lawyer did not provide a narrative around these articles nor is it evident what value they add to the applicant’s case.

38. Appreciating that the Act requires a persecutor to identify a person for the essential and significant reason of religion leads me to consider the actions that put the applicant at risk and the potential modifications that would reduce the risk to less than a real chance.

39. The specific modifications of behaviour that are necessary to be considered arise from the applicant’s past experiences, namely requiring that he not eat during daylight hours in the month of Ramadan and instead for those days eat in the privacy of one’s home and also expecting the applicant to respect the sensitivities of others and not be disrespectful by critiquing Islam (what the applicants lawyer summarised as ‘engaging in religious enquiry, research and debate, expressing his thoughts on religion freely’). The applicant added to these in the post hearing submission by listing other acts that he believes arise from his atheism that would put him at risk: performing Rock and Roll music, consuming alcohol, smoking and preference for sexual promiscuity; and in another reference he added gambling.

40. At the hearing he said that he used the alcohol and gambling as a coping mechanism. He said for the past couple of years he has been very good at managing his challenges. The applicant’s oral evidence suggests that he has rejected gambling, identifying it as having been a means to escape from his problems. As such I don’t see the applicant requiring to modify his behaviour to avoid persecution as he has already indicated that he is not using alcohol and gambling as a coping mechanism. While it is possible that the applicant will face additional stressors upon return to Pakistan, such that he would turn to coping mechanisms, he has identified others such as journal writing which are available to him.

41. As with eating a sandwich or smoking during Ramadan the modification is to shift the behaviour from a public space to a private space in that single month. The applicant confirmed that he is not addicted to alcohol. Consuming alcohol would require the applicant to seek it out and consume it privately as opposed to publicly or to cease drinking. Gambling appears to have been a coping mechanism but were he to seek it out again it can be done online.

42. Such modifications would be required throughout the year. His preference for sexual promiscuity is a matter of degrees rather than requiring abstention. Pakistan, as with any other place on Earth, is not free from sexual promiscuity as I noted to the applicant at the hearing,[6] but I acknowledge that there are certain social limitations that may require the applicant to amend his approach and as such modify his behaviour.

    [6] Ali M. Mir, Abdul Wajid, Stephen Pearson, Mumraiz Khan & Irfan Masood, ‘Exploring urban male non-marital sexual behaviours in Pakistan’, Reproductive Health, 11 April 2013

43. Relevant to sexual promiscuity the applicant recalled at the hearing how a cousin had questioned how he could remain a virgin so long and told him about the concept of muttah (temporary marriage), a religiously acceptable process of having sex outside of marriage for Shia. In addition, the applicant acknowledged that he had a relationship in Pakistan in the past and that he lost his virginity in Pakistan.

1. The question before this Tribunal is whether such modifications of the applicant’s behaviour would be ‘reasonable’ under the circumstances the applicant would face upon return including being under additional stress.

   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

2. In considering what is reasonable I take into consideration the applicant’s circumstances. He grew up in Pakistan, is cognitively aware of the cultural expectations of those who live in Pakistan and understands these unwritten rules. Any changes that he could make are known to him and could be undertaken by him without creating any separate risks of harm.

3. The applicant did not provide any argument as to why he could not make these reasonable modifications as opposed to why he would prefer not to. Based upon his awareness of the unwritten rules and cultural expectations I find that the adjustments to the applicant’s behaviours are minor and not unreasonable.

4. What is reasonable, though, is qualified in subsection 5J(3)(a) and (b) by excluding any action that would be in,

   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   conceal an innate or immutable characteristic of the person

5. Are any of the necessary modifications of behaviour ‘a characteristic that is fundamental to the applicant’s identity or conscience’? The characteristic that is fundamental to the applicant’s identity or conscience is atheism. The question then is whether any of the above listed modifications of behaviour conflict with his atheism. Would waiting to bite into a sandwich, take a drag on a cigarette or a sip of alcohol until he closes his door conflict with his atheism?

6. The applicant’s lawyer argued that the applicant’s ‘daily beliefs/thoughts and behaviours are intrinsic to his atheism and atheistic views of the world, everyday activities in Pakistan (and particularly so during state-observed religious periods which occupy at least a quarter of the calendar year) would require [the applicant] to make a modification that would conflict with a characteristic fundamental to his identity or conscience.’ 

7. I disagree. As discussed at the hearing and referenced in this decision, many Pakistanis do not attend religious events. There would be no outwardly visible distinction between a non-practising Muslim and the applicant who is an atheist. The applicant responded that being not religious is different to being an atheist. I accept that there is a difference, but not in other’s perception of non-attendance at religious events.

8. I note that the applicant has not identified circumstances where his lack of attendance at religious events has led to harm and similarly there was no independent information provided to support the claim. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from not attending religious events or cultural events associated with religion.

9. The other aspect of the applicant’s claims is his desire to voice his views on religion to others. Would withholding verbalising his beliefs about another’s religion conflict with the applicant’s atheism?

100.   The explanatory memorandum that introduced s 5J(c)(3) explains:

The effect of new subsection 5J(3) is that a person who could avoid a real chance of persecution by taking reasonable steps to modify his or her behaviour, would be found not to have a well-founded fear of persecution. This is provided that the modification of behaviour required to avoid the persecution does not conflict with a characteristic that is fundamental to the person`s identity or conscience or conceal an innate or immutable characteristic of the person. The reference in new paragraph 5J(3)(a) to conscience is intended to encompass aspects such as religion, political opinion and moral beliefs. A modification in behaviour which is contrary to any aspect of conscience` will not necessarily indicate that the person could not take reasonable steps to avoid a real chance of persecution. Only a modification of behaviour that is fundamental to the person`s conscience will be relevant for the purposes of new paragraph 5J(3)(a).

For example, a person who faces persecution only for evangelising in public about his or her religion might be found not to have a well-founded fear of persecution because he or she could avoid the persecution by not continuing to evangelise. However, despite new subsection 5J(3), the same person would be assessed as having a well-founded fear of persecution if evangelism was a fundamental part of the person’s religion and therefore fundamental to their conscience.[7]

[7]  It could be argued that engaging in debate about religion amounts to the atheist’s equivalent to evangelism. This sort of evangelism is fundamental to some Christian sects for which it would be unreasonable to require an applicant to modify their behaviour. The applicant, it could be argued, is doing something similar but not using the language of a faith and instead adopting the language of atheists, that is through rational (bounded by the temporal sphere) and empirical arguments. But I am not convinced that atheism as a philosophy or belief has a structure such that among its precepts is an expectation of adherents to argue their case. Nor am I convinced that the applicant’s practice of atheism has a proselytising element as he has clearly expressed a lack of need or desire to proselytise his atheism in Australia. A Jehovah’s Witness who does not evangelise would not be a Jehovah’s Witness but would a silent atheist be any less of an atheist?

102.   The question becomes one of whether those actions that would prevent the applicant from facing a real chance of serious harm, such as, but not limited to those that led to his past harm, are ‘fundamental’ to his identity and conscience. I think not. The applicant can remain true to his conscience and maintain his sense of self identity and yet make reasonable modifications to his behaviour.

103.   Section 5J(3)(b) requires that the reasonable steps would not ‘conceal an innate or immutable characteristic.’

104.   I first turn my mind to consider whether the applicant’s atheism is innate or an immutable characteristic. I note that the applicant adopted his atheism which would suggest that it is not an innate characteristic. Similarly, the applicant moved from being a believer of the teachings of the Prophet Muhammad to being a non-believer and equally could into the future change his belief again and as such it is not an immutable characteristic.

105.   The applicant’s lawyer argued in post hearing submissions that the applicant’s atheism is immutable, relating it to the applicant’s residence in Australia and the country being a ‘mostly atheistic society’. The submission then argued that it ‘follows that behaviours such as consuming alcohol, gambling, performing and listening to Rock and Roll music and sexual relations outside of marriage have become an immutable characteristic of [the applicant].’ I disagree. That the applicant spent an extended period of time in Australia does not imbue a perception nor an actual immutable characteristic in the applicant. All of the characteristics can be changed. In addition there are many Muslims in Australia, and many Pakistani Muslims who return to Pakistan still maintaining their faith. That there are those that keep the faith suggests that there wouldn’t be a perception that these characteristics that are common in Australia became an innate/immutable part of him.

106.   I find that the changes discussed above would not conceal a characteristic that is innate or immutable.

107.   Nevertheless, the applicant’s atheism may be immutable in the eyes of a more limited group, namely those who harmed him in the past, in that they have attributed non-belief to him and as such will continue to hold that view of him. I will consider this possibility further below.

108.   I now turn my mind to s 5J(3)(c)(i) which states:

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;

109.   The legal representative provided an extract from the Department’s The Refugee Law Guidelines in which the following is written:

A person cannot be required to undertake actions that would alter their religious beliefs, including the renunciation of religious conversion. While the expression in s5J(3)(c)(i) appears to consider a subjective approach to a religious belief, it would be inconsistent with s5J(3)(a) if any action a person thought to be the expression of the belief fell within the ambit of s5J(3)(c)(i) rather than those fundamental to the religion. To take the approach that s5J(3)(c)(i) encompassed any subjective approach to a religion could quite possibly leave s5J(3)(a) with nothing to do.

110.   I accept this view, namely that s 5J(3)(c)(i) continues to require consideration of what is fundamental to the belief.

111.   If we were to treat atheism as a belief structure in of itself as opposed to being in opposition to religious beliefs, then the form practiced by the applicant has no central features against which one could assess whether one was fundamental. Not because they are all fundamental but rather because by its very nature, none are. There is no book or laws or teachings that would allow for a common understanding of what is fundamental. The applicant’s lawyer argued that Islam serves as a point of reference for the applicant’s oppositional atheism and as such there is a structured set of beliefs. He lists them as:

a) The belief that God does not exist;

b) The belief that monotheistic religions have an historical basis in paganism and polytheism;

c) The belief that monotheistic religion and theism is therefore a hoax;

d) The belief that believers in God or gods are delusional;

e) The belief that Islamic rituals and practices, and the people who practice them, are delusional;

f) The belief against a religiously-influenced State, such as in Pakistan and other countries that follow Sharia law;

g) The belief in a lack of belief in the concepts of heaven and hell;

h) The belief in a lack of belief that morality is a product of religion and the belief that morality is deeply rooted in us, which religion often corrupts;

i) The belief that religious indoctrination of children is a violation of human rights;

j) The belief that blind or non-critical observance of religion is delusional;

k) That religious books such as the Torah, Bible and Quran are imaginary stories to be set in their historical context;

l) The belief that, as a core atheistic belief, invalid religious arguments can and should be critiqued;

m) The belief that, without the existence of God, an individual can realise their full potential;

n) The belief that, through an adoption of atheism, one has free will and freedom of thought that they have a right to exercise;

o) The belief that, irrespective of subscribing to a religion, we all need a tribe and sense of community;

p) The belief that Rock n Roll music provides a cultural medium to express freedom of thought and atheistic beliefs and sentiments.

112.   Items a) to n) can be held internally and do not require active public refutation such that the applicant would be identified by someone as a non-believer. In other words the applicant can continue to hold to them and make reasonable modifications such that he wouldn’t face a real chance of serious harm. But in o) and p) the submission takes the argument down a different path, one that was raised at the hearing, namely that he is part of a tribe. It is not clear why atheists need to be a part of a tribe other than because, as the applicant explained, ‘we all need a tribe.’ Were there to be some sort of requirement for atheists to belong to an atheistic tribe there may be some sense in the applicant needing to be among others, but there is no requirement to ‘practice’ atheism in community as there is for Islam or Christianity. Nor has the applicant exhibited a need to practice his atheism in community while in Australia.

113.   The applicant’s lawyer added to this by explaining in the post-hearing submission that participation in a ‘self-declared tribe’ is ‘fundamental to [the applicant]’s expression of his autonomy and free will, and thus fundamental to his religious beliefs and their expression.’ I do not accept that to be an atheist whether as understood by others or as he has practiced it in Australia free from fear one must be a part of a community of atheists or that the applicant has identified a community based upon atheism among the rock and roll music scene. While rock and roll may be a community that allows for self-expression it is not true that atheism is a requirement for membership of the rock and roll community. In other words, the applicant’s fears of persecution for reason of religion is distinct from his preference to inhabit the community of rock and roll.

114.   As such, in this case subsection 5J(3)(c)(i) adds nothing new to s 5J(3)(a) and (b). For clarity, the applicant would not be forced to alter his non-belief, renounce it or conceal it as he could hold on to his non-belief. As noted earlier, the applicant’s atheism does not have an element of practice in it and as such he would not be forced to cease being involved or conceal what he is not obligated to do. The applicant would continue to live and practice his atheism in Pakistan as he has in Australia where he has not sought to convert others, nor spread his views nor argue his points with believers.

115.   The submission by the applicant’s lawyer included a reference to EUW19 v MICMSMA[8] in which Judge Driver found that it is not reasonable to expect a person to conceal traces of their residence in Australia. While this would be case specific depending upon the length of time the person has been in Australia, in which community they resided and how much and what type of characteristics they adapted, the issue is not relevant to the question of being an atheist. There are Pakistan atheists, as acknowledged in the applicant’s submissions. Atheism is not unique to Australia. The applicant may have acquired certain habits, which could be considered separately under membership of a particular social group, but as far as whether his time in Australia has led to the applicant’s atheistic beliefs being immutable or perceived to be immutable, I find no basis in this argument.

[8] [2021] FCCA 11.

116.   The legal submission has what appears to be a throw away line suggesting that the ‘free choice in musical genres’ is an immutable characteristic. This is somewhat contradictory. If it is a free choice, then it is not immutable. In addition, there still must be a refugee nexus for there to be ‘a well-founded fear of persecution’. Christian rock and roll bands are common. The connection between rock and roll and atheism is not made out. In so far as rock and roll associates the applicant with a particular social group, this can be considered separately.

117.   I have also considered whether the applicant could continue to research his atheism. The applicant’s lawyer submitted that it would expose the applicant to risk arising from online surveillance of anti-Islamic and atheist activities. It is important to distinguish research from online debates. I accept that the online world is equally accessible to authorities as is the physical community and could expose the applicant to harm, but as noted above, modifying the applicant’s behaviour such that he does not participate in chat forums or debate online with believers is not unreasonable. In addition, I find that he can continue to undertake research which I find would not lead to a real chance of serious harm or a real risk of significant harm.

Essential and significant reason – religio-political views

118.   The applicant wrote, ‘I strongly oppose the idea of religiously influenced state, what Pakistan is, amongst many other countries that follow the Sharia law.’

119.   Elsewhere he wrote that he stands against ‘The belief against a religiously-influenced State, such as in Pakistan and other countries that follow Sharia law,’

120.   In the post-hearing submission the applicant’s lawyer appears to suggest that there is a political element to the applicant’s views referencing the applicant quoting at the hearing a former Pakistan Prime Minister who said that ‘a good citizen of Pakistan must be a good Muslim.’

121.   As noted earlier, I have identified this second stream of harm arising from his religio-political views and how society or the state would react to him. Earlier I had found that it would be a reasonable modification for the applicant to adjust some of his behaviour and live out his atheism as he has lived it in Australia. But the applicant acts differently when in Pakistan than in Australia. When this was put to him, he explained that in Australia people are not interested in others’ lives and don’t interfere, unlike in Pakistan. As such his behaviour in Pakistan takes a different tack. He is more forceful and reciprocates the interference with his own forceful response, but this isn’t a matter of faith or his lack thereof, rather it is a function of the type of society Pakistan is home to and his objection to the interference into his life.

122.   In such a society the involvement in the religious affairs of others by the state and society is commonplace. The applicant would be required to disclose his religion on official forms and documents when applying for identity documents, wanting to work for the government or registering to vote.[9] Vigilante action could lead to physical harm or state sanctioned harm by way of being prosecuted for blasphemy.[10] I accept that all of these circumstances would lead to the applicant facing a real chance of serious harm for the essential and significant reason of political belief.

[9] ‘Pakistan court orders citizens to declare religion’ World Watch Monitor, 13 March 2018

[10] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’, January 2022 [3.32]-[3.37]

123.   I now turn my mind to consider whether the applicant could modify his behaviour.

124.   To reduce the risk to less than a real chance the applicant would need to change his behaviour such that he would falsely put down on state documents his religion as Shia or when confronted by a state organ arising through a charge of blasphemy to resile from it and adhere to the state sanctioned views on religion.

125.   In this instance I do not accept that it would be a reasonable modification of the applicant’s behaviour. Nor could it be reasonable when considering subsection 5J(3)(a):

conflict with a characteristic that is fundamental to the person’s identity or conscience; or

126.   The applicant’s views on his rights to freedom from interference by the state and society in his beliefs are fundamental to his identity. How this differs from the atheism stream discussed earlier is that continuing to have an atheistic view and being true to them, while facing less than a real chance of serious harm requires changes that are only peripheral to his atheism such as not eating in public. There is nothing in the applicant’s approach to atheism that expecting him to not eat in public would be unreasonable.

127.   But being against the religio-political structures of Pakistan while living in Pakistan is different. The changes that are required for the applicant to face less than a real chance of serious harm would require him to submit to the religio-political social and governance structures. A government requiring his religion to be noted on paperwork, as is widespread in Pakistan, would lead to his atheism and in turn facing serious harm or the applicant modifying his behaviour such that he would profess to holding a belief that is contrary to what is fundamental to his conscience. Such an expectation would breach s 5J(3)(a). As such I find that modification of behaviour is not reasonable.

128.   I have also considered whether the applicant can seek protection from the state but noting that one form of the harm he faces is state sanctioned harm by way of the blasphemy laws I find that the applicant is unable to seek protection from the state.

129.   I have also considered whether the applicant can relocate to another part of Pakistan. As the entire country is governed by a system that the applicant finds objectionable, relocation will not lead to the applicant not facing a real chance of serious harm.

130.   I have also considered whether the applicant has a right to enter and reside in a third country. There being no evidence before me to suggest that he does, I find that Australia’s protection obligations remain present.

131. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

decision

132. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Denis Dragovic
Deputy President

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.

…