1800941 (Refugee)

The applicant, a Pakistani male, sought a protection visa, claiming he faced serious harm due to his atheism and his opposition to a religiously influenced state. The dispute centred on whether his fear of persecution was well-founded and whether he could reasonably modify his behaviour to avoid harm. The case was heard by Deputy President Denis Dragovic.

The court was required to determine if the applicant's atheism constituted a protected ground under the Migration Act 1958, and if his opposition to Pakistan's religio-political system amounted to a political opinion that placed him at risk of persecution. A key legal issue was whether the applicant could be expected to modify his behaviour to avoid harm, and if such modifications would conflict with characteristics fundamental to his identity or conscience, or conceal innate or immutable characteristics. The court also considered whether state protection or internal relocation within Pakistan would be available or effective.

The Deputy President found that the applicant had experienced serious harm in the past due to his atheism and that there was a real chance of such harm continuing. However, the court determined that modifications such as refraining from public criticism of Islam or consuming alcohol privately were minor and not unreasonable, and did not conflict with fundamental aspects of his identity or conscience. Crucially, the court found that the applicant's opposition to Pakistan's religio-political structure was a fundamental aspect of his identity and conscience, and that requiring him to conceal this or falsely declare his religion on official documents would not be a reasonable modification. As state protection and internal relocation were deemed unavailable or ineffective, the court concluded that Australia had protection obligations towards the applicant.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa under section 36(2)(a) of the Migration Act.