1821623 (Refugee)

[2019] AATA 5743

1821623 (Refugee) [2019] AATA 5743 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821623

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Michael Hawkins

DATE:23 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 23 April 2019 at 6:41am

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – religion – activity in Christian organisation – attempted kidnap and threats by militants – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss. 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 26 August 2013 and the delegate refused to grant the visas on 26 May 2014.

3. The applicants sought a review of the Delegate’s decision before the Refugee Review Tribunal. The Tribunal affirmed the decision of the Delegate not to grant the applicants Protection visas on 5 June 2015.

4. The applicants appealed the decision of the Tribunal to the Federal Circuit Court of Australia.

5. The Federal Circuit Court of Australia dismissed the application [in] December 2017, determining that none of the applicants’ grounds revealed jurisdictional error.

6. The applicants appealed that decision to the Federal Court of Australia. The Federal Court allowed the appeal. It quashed the Tribunal decision and remitted the matter for determination according to law.

7. In the decision delivered on 19 June 2018, the Federal Court held that the Tribunal failed to consider the Corroborative Documents in reaching its conclusions about the appellants’ credibility. This was not a case where the Tribunal’s findings about the appellants’ credibility could be said to be such that the “well was poisoned beyond redemption”. The Tribunal had expressed doubts about credibility, but it had not made “stark findings of untruthfulness” in emphatic terms, nor was there any finding on probative grounds that the Corroborative Documents were worthless so as to exclude them from consideration of the credibility of the appellants’ claims. The Tribunal’s statement that the Corroborative Documents were “considered” was a bald statement which, without more, could not demonstrate that they were considered in making a credibility finding.

8. The applicants appeared before the Tribunal on 15 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother Mr [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

   RELEVANT LAW

9. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

   Refugee criterion

10. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

11. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

13. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

14. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

15. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

16. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

17. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

18. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

19. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

20. 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 a protection 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 the applicant 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’).

21. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

22. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

    Member of the same family unit

24. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and child.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act and the second and third-named applicants satisfy s.36(2)(b) of the Migration Act.

    Background:

26. The applicant is a [age] year old woman from Rawalpindi, Punjab, Pakistan.

27. The applicant is of the Christian faith, is of Punjabi ethnicity, and speaks Urdu and English.

28. The applicant is married. She was married in Pakistan [in] January 2011.

29. The applicant arrived in Australia [in] July, 2011, pursuant to passport [number], issued [in] 2011 and expiring [in] 2016. She arrived as a dependent to a [Student] visa.

30. The second-named applicant (applicant 2) is a [age] year old man from Sialkot, Punjab, Pakistan.

31. Applicant 2 is of the Christian faith, is of Punjabi ethnicity, and speaks Urdu and English.

32. Applicant 2 is married to the applicant.

33. Applicant 2 arrived in Australia [in] July, 2011, pursuant to passport [number], issued [in] 2010 and expiring [in] 2015. He arrived pursuant to a [Student] visa.

34. The third-named applicant (applicant 3) is a [age] year old child of the applicant and applicant 2. He was born in Australia.

35. The applicant and applicant 3 departed Australia [in] May 2013 to Pakistan. They re-entered Australia [in] July 2013.

36. The applicant lodged an application for a Protection visa on 26 August 2013.

37. The applicant did attend an interview with the delegate on 16 January 2014, but has provided no additional information in support of her claims prior to the hearing.

    Claims:          

38. The applicant’s claims are set out in a signed statement of the applicant dated 21 August 2013. The Tribunal noted the claims were summarised by the Federal Court as follows:

39. The applicant claims that she was a Christian from Rawalpindi. She claims her parents had permitted [Church 1] to occupy part of one of their properties and her father had given money to the churches to provide accommodation, food and lodging for poor Christians who were exploited by Muslims.

40. The applicant claims her father was also an elder of [Church 2].

41. The applicant claims that she was involved, with her family, in visiting Christian suburbs and the homes of people living in poverty in search of talented Christian children who, with the consent of their parents, were brought to the churches for education.

42. The applicant claims that upon completing her studies in 2007, she became involved full-time in the church and was also involved in visiting remote Christian villages in the North-West Frontier Province (NWFP). She claims her uncle and aunt lived in Peshawar in the NWFP and she travelled there frequently with her father. She claims she was shocked to find talented Christian youths from poor families in an area who had been forcibly converted to Islam. She claims she persuaded her father to permit her to bring these youths to Rawalpindi and accommodate them in the churches. She claims she was assisted by Reverend Pastor [B] of [Church 1].

43. The applicant claims that in September 2008, she was offered a job at [Organisation 1] as [Job title 1] and was later promoted to [Job title 2]. She claims that at [Organisation 1] she was able to provide Pastor [B] with contact details of international organisations so that he could, in turn, contact them and inform them of the predicament of Christian children in the NWFP and Balochistan.

44. The applicant claims that in about 2009, Pastor [B] started travelling to Peshawar representing these organisations and met many church Priests in the NWFP and Balochistan. She claims he became well-known as a person trying to protect Christian children held captive by militants. Because of his work, Pastor [B] was arrested, tortured and beaten by militants and Police Officers. The applicant claims he later died of a heart attack.

45. The applicant claims her father heard from Police Officers that militants were planning to track down the Christians involved in taking Christian youths who had been converted to Islam. She claims her father advised her to apply to travel overseas. The applicant claims she told her father that she and applicant 2, who at the time was her fiancée, had applied for overseas study [and] were awaiting the outcome of those applications.

46. The applicant claims that applicant 2 obtained [permission] to further his studies overseas and they were married [in] January 2011 so that she could accompany him as a dependent. She claims she then moved to applicant 2’s home in Rawalpindi.

47. The applicant claims that the Police subsequently visited her father to question him about her involvement with Pastor [B]. She claims her father denied she had any such involvement. She claims that Police also visited her uncle and aunt in Peshawar and that they beat her aunt’s son when he objected to their accusations against her.

48. The applicant claims she moved to an uncle’s house for further protection while she awaited the issue of her visa to travel to Australia. She claims her uncle drove her to and from her workplace. The applicant claims that once in Australia, she was told by her parents that the Police had returned to look for her and that her father continued to receive anonymous calls threatening to take her away because of her involvement in transporting Muslim youths from Peshawar. She claims the local Mullah also told her father that local terrorist groups had informed him that she had been involved in transporting Muslim children to Rawalpindi, together with Pastor [B], but she claims her father convinced the Mullah that only Pastor [B] was involved. She claims her father told her that she could return to Pakistan once applicant 2 had completed his course in Australia.

49. The applicant claims that after the birth of her child in [2012], her parents and [sisters] visited her in Australia and told her that the situation in Pakistan was getting worse for Christians. She claims her father again told her that she should return to Pakistan only when applicant 2 had completed his studies.

50. The applicant claimed that she was very happy when told by applicant 2 that his course would be completed in mid-2013 as she could take their child to Pakistan and live with her family. She claims that at the time applicant 2’s house (that she had lived in before departing Australia) was being rented by tenants. The applicant claimed that they decided to terminate that tenancy and [in] May 2013 the applicant left Australia with applicant 3 and returned to Pakistan to arrange for the house to be cleaned and to be ready for applicant 2’s arrival.

51. The applicant claims that [in] July 2013, while travelling with her brother and applicant 3 back to their house at about 7.30pm, they were intercepted by a car carrying three people in Shilwar Kameez (a type of traditional dress) with beards and guns. She claims she was dragged out of the car by one of the people and that another snatched applicant 3. The applicant claims that she started screaming and passers-by came to help. She claims that the men left, telling her that while she had managed to escape this time, next time she would not escape and that she should “count the number of days before she dies”.

52. The applicant claims her father took her to the Police station and she lodged a First Incident Report (FIR). She claims that Police Officers told her that it would not be wise to stay on any further as they would not be able to save her from the militants who were aware of her involvement with Pastor [B]. She claims that the Police told her father that she should leave the country before she could be murdered and shot dead.

53. The applicant claims she spoke to applicant 2 who told her to come back to Australia immediately. She claims she moved to her uncle’s house until she boarded a flight to Australia.

54. Applicant 2 and applicant 3 applied for protection as members of the applicant’s family unit and do not have their own protection claims.

    Evidence:

55. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and lodged on 26 August 2013 (“visa application”);
    • The applicants’ identity documents being copies of passports;
    • Documents submitted by the applicant all translated:
    • Signed statement of the applicant dated 21 August 2013.
    • Record of interview with the delegate dated 16 January 2014;
    • The protection visa decision record (‘delegate’s decision record’) dated 26 May 2014;
    • Additional submissions from the applicant including:

    oNumerous media releases and articles relating to the suffering of Christians in Pakistan and the misuse of the blasphemy laws;

    oDFAT Smart Traveller Advice dated 12 July 2013;

    oMedia Release by Australian Minister for Foreign Affairs;

    oLetter from [Organisation 2] dated [August] 2013;

    oTranslated FIR;

    oPakistan National Identity Cards;

    oBirth Certificate;

    oCertificate of Membership of [Church 2];

    oBirth Certificate of applicant 3;

    oLetter of Reference from [Organisation 1];

    oSeries of photographs of suicide bombing in Peshawar;

    oCorrespondence in relation to student visa;

    oMedical records for applicant;

    oLetter from [Church 1] dated [May] 2015;

    oFIR dated [July] 2013;

    oRecord of travel to Pakistan.

    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) Country Information Report on Pakistan, published on 20 February 2019 (the DFAT Report).

    Country of reference / receiving country

1. The applicants claim to be Pakistani nationals. Based on the copies of their passports and provided to the Department of Immigration and Border Protection (the Department) by the applicants and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

2. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s36(3).

   Hearing:

3. The applicants attended the hearing on 15 April 2019. They were represented. The hearing was assisted by an interpreter in the Urdu and English languages.

4. The Tribunal asked the applicant about the completion of the Protection visa application forms. The applicant said the forms were completed by her migration agent at the time. The Tribunal asked the applicant whether she understood her claims contained in the application and the other information in the forms. She replied that she did. The applicant said she signed the forms herself.

5. The Tribunal read to the applicant a summary of her claims as set out in paragraphs 39 to 53 above. The Tribunal asked the applicant if they were accurate and complete. She said they were.

6. The Representative intervened to comment in relation to the FIRs that had been previously lodged as evidence. He noted that there had been two FIRs, with the second one correctly stating the date as at [July] 2013. The Tribunal commented that it recalled this being an issue before the earlier Tribunal. The Representative agreed and went on to explain that the first FIR actually had the correct date of [July] 2013 in the top left hand corner of the document but that it was difficult to see. The Tribunal noted that.

7. The Tribunal asked the applicant about her Christianity. She replied that she had been born into a Christian family. Her family were practising Christians.

8. The Tribunal asked the applicant about where the church was occupied within the building owned by her parents. The applicant replied that the church occupied one floor of the building and that the Pastors lived in the rest of the building.

9. The Tribunal asked the applicant when it was that she became involved in visiting Christian suburbs and homes of people living in poverty. She replied that it was in around 2005 when she was [studying]. She stated that she would have been aged about [age] at the time.

10. The Tribunal asked how long she remained involved full-time in the church. The applicant replied that she was involved full-time as a volunteer for about one year in 2007/08. Thereafter, she was offered a job.

11. The Tribunal asked the applicant whether she continued to visit those same Christian suburbs after she took on full-time employment. The applicant replied that she could no longer visit Peshawar, but instead visited similar homes in Rawalpindi.

12. The Tribunal noted from the applicant’s claims that she persuaded her father to allow her to bring youths to Rawalpindi and to accommodate them in the churches. The Tribunal inquired of the applicant as to the extent of her involvement. The applicant said that she would generally have a youth drive a utility to bring the students back to Rawalpindi. Once there, Pastor [B] would arrange accommodation in the churches and their families were able to come and visit them. The Tribunal inquired as to which churches these might be. She replied that it was [Church 1] and also other churches within the Rawalpindi area.

13. The Tribunal asked the applicant about the activities of Pastor [B] and inquired whether he also went to Peshawar. She replied that during her volunteer year in 2007 and 2008, he only occasionally went to Peshawar. She stated that he really didn’t get involved in travelling to Peshawar until 2009.

14. The Tribunal asked the applicant how many times she herself travelled to Peshawar. She replied that she visited there twice in short order and thereafter visited monthly.

15. The applicant went on to explain that once she took on full-time employment with the church, she had been able to discover international organisations that were able to help children. Using that information, she was able to put Pastor [B] in contact with those international organisations.

16. It was thus from 2009 that Pastor [B] travelled widely, connecting with the international organisations to find accommodation for the young Christian students. It was then that he also travelled to Peshawar.

17. The Tribunal asked after Pastor [B] as to when he was arrested. The applicant stated that he was arrested in July 2010 during the course of which he was tortured in order to find out the location of all the Christian students who had been taken. She went on to add that Pastor [B] died in August of 2010, apparently of a heart attack.

18. The Tribunal asked the applicant whether she had any evidence of the existence of Pastor [B] or any of his activities. For example, did she have any press cuttings, perhaps relating to his arrest and death. She replied that she did not. The only evidence she had was her own evidence previously stated and being put to the Tribunal that day.

19. The Tribunal inquired after what her father had heard from Police Officers. She stated that her father had heard that the militants were looking to track down the youths who had been engaged in relocating the Islamic children from their homes. The Tribunal asked the applicant whether she assumed that that included her, as being a youth. She stated that it was and went on to add that the Police apparently had reports of a girl being involved which, of course, was her.

20. The Tribunal asked the applicant just how many Christian children she could state that she had saved herself. She replied that she had relocated about 15 children from Peshawar to Rawalpindi. The Tribunal asked the applicant about the success of Pastor [B]. She said that he worked on a much bigger scale than she ever had as he was involving other organisations. As a consequence, she believed that he had probably rescued between about [number] and [number] Christian children.

21. The applicant stated that it was in about late 2010/early 2011 that the Police actually visited her father to question him about her involvement with Pastor [B]. She said that her father simply denied any involvement that she was claimed to have had. She said that her aunt and uncle did the same when they were visited in Peshawar.

22. When she learned that the Police had actually visited her father and her aunt and uncle, she states that she took the additional security step of moving to another uncle’s house where she stayed until she left for Australia. This other uncle’s house was in Islamabad.

23. The Tribunal asked the applicant whether there had been any other engagement with the Police after she left for Australia. She said that shortly after arriving in Australia, her parents told her that the Police had returned to her parents’ house looking for her. She said that the local Mullah told her father that local terrorist groups had informed him that she was involved in the transportation of Muslim children to Rawalpindi. The Tribunal asked the applicant under what circumstances had the Mullah contacted her father. Was it a friendly call enquiring after her or more in the nature of a threat. She replied that the Mullah had contacted her father in order to find out where the children were. She said that her father told the Mullah that his daughter was not involved in any way with the transporting of Muslim children to Rawalpindi and that it was only Pastor [B]. He said that she had had no involvement with Pastor [B].

24. The Tribunal inquired about the Mullah. Was he the same Mullah that had attacked her brother. She said it was. The Tribunal inquired as to whether the attack on her brother was in any way connected with her. She said it was not and that her brother had been attacked after she had returned to Australia.

25. The Tribunal asked the applicant why it was that her father could recommend, in these circumstances, that she should return to Pakistan. She replied that her father had said to her that he was convinced that he had actually convinced the Mullah that it was only a rumour that the applicant was involved in the transportation of the Muslim children. She said he became even more convinced of that by reason that after his contact with the Mullah, there was no further interaction with the Mullah or the Police. He assumed that they were all satisfied that the applicant had nothing to do with Pastor [B].

26. The Tribunal asked the applicant why she would risk returning to Pakistan. She replied that from 2011 to 2013, there had been no talk at all about her. Consequently, they all believed it was safe for her to return and she actually wanted to return to Pakistan to be with her family.

27. The Tribunal noted that prior to her return in 2013, the applicant had no intention of applying for a Protection Visa. This was confirmed by the Representative in his closing submissions later.

28. The Tribunal noted that her family had advised her that things were getting worse for Christians and that notwithstanding that advice, she still went back to Pakistan. The applicant responded to that by saying that she was aware of the plight of Christians in Pakistan, but that it was a general situation for all Christians in Pakistan and that she did not believe that she would be individually targeted as a Christian.

29. The applicant confirmed that consistent with her intention to return to Pakistan and stay there permanently, she had terminated the tenancy that was on her husband’s house and began to clean it in anticipation of his full-time return.

30. The Tribunal inquired of the applicant as to the events surrounding the alleged attempted abduction [in] July 2013. She restated the events as set out in her claim, that they had been intercepted by a car with three men in it. She stated that the men were wearing militant “get up”, had beards and carried guns. She said that they demanded she get out of the car and she refused. The men thereupon pulled her out of the car by her arm. Another man took her baby. She stated that she started screaming and help arrived from a local bank and hospital.

31. The Tribunal asked the applicant what the men actually said to her. She stated that all they said to her was that she was lucky this time but that next time she would not escape and that she should count the number of days before she dies.

32. The Tribunal asked the applicant what it was about the men that caused her to believe that they were militants determined to attack her and not mere robbers participating in an armed robbery.

33. The applicant provided a long explanation. She said that when she returned to Pakistan and to her husband’s house, the local Muslim shopkeepers were inquiring about what she was doing. They were asking her whether she was renovating the house with an intention to sell and that if she was, that they would like to buy it. The Tribunal asked the applicant whether the local people knew who she was. She stated that they did and knew that she had been in [Country] as they knew her husband’s parents were in [Country].

34. The Tribunal asked the applicant why it was that it was two months after she returned that she became the victim of the attack. It noted that she had been back for two months, that everyone knew she was back, that the local Mullah in the village in which her husband’s house was knew that she was back - why did it take two months for the militants to catch up with her? She replied that the local Muslims kept asking her whether she was back permanently. She states that she kept telling them that she was. The applicant suggested that therefore there was no particular urgency. She also went on to explain that there were two separate Mullahs, one in her husband’s house’s village and another one back in her parents’ village. She stated that it would have taken some time, firstly for word to get back to the Mullah in her husband’s village and for him to then get word to the Mullah in her father’s village that she was back and living in her husband’s house.

35. The Tribunal asked the applicant what the distance between the two houses was. She replied that it was approximately [number] minutes away.

36. The Tribunal asked the applicant whether the people in her husband’s village were aware of her previous activities in her own village. The applicant replied that they had a limited knowledge that the militants and the Mullah were trying to track her down. She believes that that was the reason why the locals in her husband’s village were determined to know whether she was going to stay permanently in Pakistan.

37. The Tribunal asked the applicant to return to the original question which was why it was that she believed she was being targeted in this particular attack and not merely the victim of a robbery.

38. The Tribunal suggested that the threats made to her after it was apparent that help was at hand might be consistent with words a robber might say given that the robbery had been thwarted.

39. The applicant replied that it was clear to her that the men were trying to abduct her. She said they did not demand money or her handbag or anything like that. They demanded that she get out of the car and then they dragged her out of the car. She said that she had no doubt that they wanted to abduct her. She also believed that they wanted to abduct her to obtain information about where the children were rather than kill her as they could so easily have shot her on the spot.

40. The Tribunal sought to explore her response further by asking the applicant what it was that caused her to have no doubt that she was the victim of an abduction and how could she be so certain that it related to her and her past.

41. The applicant then talked about her mission to rescue children. She then talked about how militants tell the PoIice what to do and that the Mullah and militants are one. She then went on to add that the three men did not look normal to her.

42. The Tribunal asked the applicant whether any of the three men called her by name. She said they did not.

43. The Tribunal asked the applicant whether any of the men asked her about the whereabouts of the children. She said they did not. They did not mention the children at all.

44. The Tribunal expressed its concern about the conclusion that it felt the applicant was jumping to in the absence of any direct evidence that she was being abducted. The Tribunal commented that the applicant’s evidence appeared to be based on supposition and speculation.

100.   The Tribunal asked the applicant about her father’s involvement with the rescue of the children. It noted that he had been supporting the mission financially and finding the children jobs. Further, he provided the house in which the church was located and in which some of the children were accommodated. The Tribunal asked the applicant why it was that the Mullah had not come after her father given his involvement.

101.   The applicant responded by stating that it was she who brought the children, transported them to Rawalpindi and spoke to the families. Her father did not do that.

102.   The Tribunal persisted, stating that it was her father that financed the operation and found them jobs. Why is it that he is not implicated? The applicant replied that he just gave money to the church, and did so in a way that was not public.

103.   The Tribunal asked a similar question of the uncle, given that he put her up in Peshawar and that he would take her to the villages and to the Christian households. Why was it that he wasn’t implicated?

104.   The applicant again responded that it was she who was at the frontline and it was she who had all the information about the children and where they were relocated to. It was she, as the girl, who was identified, as being involved.

105.   The Tribunal asked again why it was that the Mullah did not torture her father and uncle to obtain the information that was required. She replied by stating that she believes that when Pastor [B] was interrogated, they learnt that it was youth who were involved, and not older people. The Tribunal asked why it was that the militants did not put two and two together, that the father financed the entire operation and provided the church - that without him, the operation would not have taken place. The Tribunal went on to add that it couldn’t understand why it was that the applicant is the only person that the militants and the Mullah are interested in. The applicant replied by stating that it was she who was the face of the operation and it was she, possibly as a female, who witnesses in Peshawar would have identified and reported.

106.   The Tribunal returned again to the events of [July] 2013 and asked the applicant what caused her to join the dots between the hold-up and her past activities, given that she had not been called by name and that the children were not mentioned. The applicant replied that the men, by reason of their get-up, appeared to be militants and that as they targeted her, she was sure it was because of her past activities.

107.   The Tribunal persisted with this line of questioning, noting that as she had stated, that nothing had happened between 2011 and 2013, which caused her to feel that it was safe to return to Pakistan, that she had been back in Pakistan for two months and nothing had happened, that her father was convinced that the Police and Mullah were satisfied that she had nothing to do with Pastor [B] and it appeared that this attack had happened out of the blue. The applicant replied by suggesting that possibly the Police were tricking them all, which the Tribunal interpreted as lowering the applicant and her family into a false sense of security.

108.   The Tribunal considered the First Incident Report that had been provided in support of the applicant’s claims.

109.   The Tribunal stated that it was aware of the Country Information referred to by the Delegate and in the DFAT Report that there was prevalence in Pakistan of the creation of fraudulent documents.

110.   The Tribunal stated that that alone did not mean that the documents presented were fraudulent. It noted that the FIR appeared to be in a correct form, noted the contemporaneous date of the attack and the report, noted the representative’s direction to review the date of the FIR and so consequently, the Tribunal had no reason to doubt it.

111.   It noted that the previous Tribunal was concerned by the delay of five days between the attack and the making of the FIR but, as submitted by the Representative, the FIR was in fact dated [July] 2013, which was the day of the attack. As such, this would appear to corroborate the applicant’s claims that she had gone to the Police immediately after the attack. The FIR would appear to corroborate the fact of an attack but noted that the conclusions that it drew were as put to the Police by the applicant.

112.   The Tribunal also considered the letter from [Church 1] which the Tribunal also acknowledged that, on its face, appeared to corroborate the applicant’s claims to membership of that church and the activities that she had been involved in.

113.   The Tribunal took issue only with the statement by the writer of the letter that he knew of the threats that had been made to the applicant and the Tribunal queried how that writer knew of those threats - had he witnessed such threats or had he been told about the threats. Other than that, the Tribunal was satisfied with the genuineness of that letter.

114.   The Tribunal took evidence from the applicant’s brother, Mr [A]. Mr [A] spoke in English. He spoke quickly and passionately.

115.   The Tribunal asked him to recount the events of [July] 2013. He stated that he was driving the car and his sister and nephew were sitting in the back seat. He noted that a [car] intercepted them and forced them to stop. He stated that three men got out of the car. He also noted that they had beards, appeared to be in some type of uniform and were armed. He stated that the men went straight to the back door where the applicant was sitting. He recounted how they demanded that she get out of the car and that when she refused, they pulled her out. He also noted that one of the other men had the baby. He stated that when he attempted to intervene, he was struck.

116.   The Tribunal asked the witness what the men had said. He replied that they said nothing at all until the end when other people came to intervene and as they took off, they said words to the effect that the applicant might have got away this time, but next time she will not be so lucky and that she should count the days until she is killed.

117.   The Tribunal asked the witness why it was that he did not believe that this was an attempted robbery. He replied by stating that to him, it appeared that the three men knew who the applicant was as they had gone straight to her, pulled her out of the car and tried to push her into their car. He also said it was in the tone the men used in stating how she had got away this time but would not next time.

118.   The Tribunal asked the applicant about the circumstances by which he had claimed protection to obtain a visa to stay in Australia. It particularly wanted to know whether the circumstances by which he claimed protection were in any way connected to the applicant’s. He said that they were not. The Tribunal noted, however, that it had read the decision of the Tribunal which effectively granted refugee status to the witness and agreed that the circumstances were not the same but that during his hearing with both the Delegate and the Tribunal, he had referenced the events involving the applicant and the assault upon himself. His recount of the events in his own hearings appeared to be consistent with his evidence to this Tribunal.

119.   Asked if there was anything else he had to say, he restated his fears for his sister. He noted that his parents and other sisters have been to Australia to visit them all and did not attempt to stay. He stated that they had returned to Pakistan within the terms of their visas.

120.   The Tribunal heard from the applicant’s Representatives.

121.   The Representative took issue with a conclusion drawn by the Tribunal and referenced a statement by it that it had joined the dots between the applicant’s father’s involvement. He stated that the Tribunal could draw such a conclusion as it was in possession of all the evidence. He stated that the militants and the Mullah would not have been in possession of any evidence relating to the financial contribution the father was making to the mission.

122.   The Representative stated that it was quite apparent that the events of [July] 2013 were an attempted abduction. He noted that both the applicant and the witness had described the “get-up” the men were wearing. He noted that both the applicant and the witness had stated that there was no attempt to rob them. He stated that the witness had stated that the men had tried to force the applicant into their car. He noted that the witness had stated that the men went straight for his sister.

123.   The Representative also noted, which the Tribunal had also, that the applicant had not attempted to embellish her story by agreeing with the Tribunal when the Tribunal had offered the specific opportunity for her to do so. He noted that the applicant had responded truthfully in replying that the men had not used her name or had mentioned the children. It would have been easy for her to do so.

124.   The Representative invited the Tribunal to consider that the applicant had made her application for a Protection Visa within one month of her arrival back to Australia.

125.   The Representative and the Tribunal discussed the findings of the previous Tribunal, in relation to his concerns about the applicant’s claims and her return to Pakistan in 2013. The Representative stressed that until 2013, the applicant had not made any protection claims, as she intended to return to Pakistan upon the completion of her husband’s study. She had made it quite clear to that Tribunal, and to this Tribunal, that she believed she had nothing to fear in Pakistan prior to her return in 2013. She had stated on many occasions when invited by the Tribunal to do so that her father believed that he had convinced the Mullah and the Police that she was not associated with Pastor [B] and therefore believed that she was in the clear and able to return to Pakistan. Her claims about the events prior to her leaving Pakistan in 2011 formed only the background to her protection claims that arose upon the attack upon her and made her return to Australia in 2013.

126.   The other Representative referred to Country Information that had been previously tendered. The Tribunal noted that it was in receipt of that Country Information and had considered it as well as the current DFAT Report.

127.   The Representative went on to add current information, that as late as last month, there was an incident involving the practice of marrying Christian children off at 14 years old.

128.   The Tribunal advised that it would consider all of the Country Information before it.

Assessment of Claims and evidence, and findings:

129. 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 an 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. 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 (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

130.   The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

131.   The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

132.   The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

133.   The Tribunal was very mindful that whenever evidence is taken in a language other than the first language of the applicant or through an interpreter there is always the chance that there may be differences in meaning and nuance. The Tribunal noted that the applicant speaks Urdu and English. Occasionally, the applicant spoke to the Tribunal in fluent English. She sometimes answered questions without the assistance of the interpreter. The applicant presented as calm and mature and cool-headed. The Tribunal was satisfied that the applicant spoke quite good English and considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.

134.   From the outset, the Tribunal was impressed by the applicant’s apparent honesty in answering its questions. The Tribunal expressed its concerns with some of the applicant’s claims and evidence, yet the applicant maintained her recounts of events in her own words and consistent with evidence previously presented to the Delegate and to the previous Tribunal. The Tribunal had noted, and as the Representative submitted, that the applicant had not attempted to embellish her claims or her evidence, even when given an opportunity by the Tribunal to do so, in circumstances where the Tribunal had effectively “led” the applicant in questioning. As such, the Tribunal found the applicant’s claims and evidence believable and compelling.

135.   The Tribunal was equally impressed by the witness, who was the applicant’s brother. The Tribunal had noted in the hearing that the evidence presented by the witness during the hearing was consistent with evidence the witness had presented in prosecuting his own protection claims for a Visa before the Delegate and a Tribunal (differently constituted). The Tribunal noted, albeit with some surprise, that this witness had not been presented as a witness to the previous Tribunal and that had he been so, the previous Tribunal would have been placed in the position of having what he might have considered to be corroborating evidence.

136.   And to that end, the Tribunal noted that the previous Tribunal had strong concerns about the delay between the alleged attack upon the applicant and her making a First Incident Report. The previous Tribunal, quite rightly, relied upon a translation of an FIR that stated it was made [in] July 2013, some five days after the alleged attack. Upon forensic examination by the applicant’s Representative, he was able to guide the Tribunal to understanding that the original document, untranslated, noted that it was made on [an earlier date in] July 2013, which was indeed the same date as the alleged attack.

137.   The applicant was passionate in relating her recount of events and her involvement in the relocation of children from Peshawar to [Church 1] in Rawalpindi. She presented that evidence logically and without hesitation. She carefully identified the roles of all the players in the mission whilst not overstating her own role. Accordingly, the Tribunal accepts that the applicant had been involved in identifying Christian children who had been converted to Islam, discussing opportunities with the parents of such children and participating, by organising, for the relocation of those children to Rawalpindi.

138.   The Tribunal accepts that the applicant worked with Pastor [B], who was the Pastor at the time of [Church 1], and who arranged for the placement of those children with accommodation in [Church 1] and other churches in Rawalpindi.

139.   The Tribunal had its concerns that the applicant was unable to present any corroborating evidence of the existence of Pastor [B], his activities or his arrest, detention, torture and death, but in light of the Tribunal’s view as to the applicant’s overall credibility, is prepared to accept the authenticity of that claim.

140.   The Tribunal accepts that as a young female who no doubt visited many families in Peshawar, that she would have stood out as having been involved in the mission. The Tribunal therefore accepts that the applicant may have been identified as being involved with the relocation of children from Peshawar.

141.   Accordingly, it accepts that Islamic militants, through the Police and local Mullahs, would have been determined to locate those involved in the mission and that their inquiries may have led to the identity of the applicant. It therefore comes as no surprise that the applicant’s father and relatives would have been approached in relation to the events in Peshawar.

142.   The Tribunal notes that applicant 2’s parents lived in [Country] at the time. It is therefore unsurprising that the applicant and applicant 2 had sought visas to study in [Country]. Equally, it is not surprising that they would also seek study opportunities in Australia and other places.

143.   The applicant claimed to have relocated to another uncle’s home after hearing of the inquiries made by the militants of her family members. She claims that she stayed with this uncle until she and applicant 2 departed for Australia. The Tribunal has no reason not to accept that claim.

144.   The applicant claimed that after her arrival in Australia, further inquiries were made of her father as to her whereabouts and her involvement with Pastor [B]. She simply claims that her father dealt with the inquiries and believed that he convinced his local Mullah that she was not involved and not involved with Pastor [B] and that claims of her involvement were no more than rumour. It was on this basis that her father believed that it was safe for her to return.

145.   The Tribunal is of the view that combined with the applicant’s strong desire to return to Pakistan to be with her family, and that no inquiry had been made about her from 2011 to 2013, that the applicant believed that it was safe to do so. It is apparent that she engaged in activities back in Pakistan in an open and quite public way. It is apparent that she made no secret of the fact that she intended to remain in Pakistan.

146.   Consistent with this was her evidence that she had not at any time considered seeking protection in Australia prior to her return to Pakistan in 2013. The Tribunal accepts that the applicant had that state of mind and intention.

147.   The Tribunal interrogated the applicant about the events in Pakistan [in] July 2013. The applicant readily satisfied the Tribunal as to the fact of the attack. Her recount was coherent and compelling.

148.   The Tribunal hammered the applicant about how she had concluded that the attack on that date specifically targeted her and related to her previous activities and was not simply an attempted armed robbery. The Tribunal was concerned by her response as it found it to be based on supposition and speculation. She used words such as “appeared” and “was certain” without any compelling evidence of causal connection between the attack and her previous activities.

149.   Perhaps it was out of frustration that the Tribunal led the applicant by asking her whether the attackers had called her by name or referred to the children in any way. The Tribunal was satisfied that the applicant understood the questions and the line of questioning and the Tribunal was also satisfied that the applicant is an educated woman and knew what the Tribunal was driving at, yet she resisted the temptation to simply agree with the Tribunal when she could so easily have done so. The Tribunal stated its concerns about the evidence and the causal connection on several occasions, yet the applicant maintained that she was simply certain that it wasn’t a robbery and that the attackers knew her and were seeking to abduct her in order to secure information about the location of the children.

150.   It was not until the Tribunal heard from the applicant’s brother, who had not been present during the evidence of his sister, that the Tribunal could obtain any comfort in relation to its concerns. He was able to state that the attackers went straight for the applicant and by reason of that, and them not having demanded money or wallets or purses, that he was convinced they were after his sister. He also mentioned that they tried to push her into their car. He concluded, by the intonation of their voices, that they knew the applicant and that there was purpose in their actions. Accordingly, the Tribunal accepts the fact of the attack and the objective of the attack.

151.   This is corroborated by the FIR tendered in evidence. As previously stated, the report was contemporaneous and factual. Of course, the Tribunal acknowledges that the FIR is based on information provided to the Police by the applicant, as was the conclusions drawn as to who was involved.

152.   But the Tribunal has no reason to doubt the authenticity of the document on its face, and by reason of its content and timing, accepts its authenticity.

153.   The Tribunal also notes that the applicant acted virtually immediately to return to Australia.

154.   Furthermore, she made an application for a Protection Visa, based on the events of her attackers, drawing on her previous conduct pre-2011 in making an application for a Protection visa within a very short time of returning to Australia.

155.   The Tribunal also notes that many subsequent inquiries have been made as to the applicant’s whereabouts and activities.

156.   The Tribunal is satisfied that should the applicant return to Pakistan, that she will be at risk of demands being made for information as to the location of all of the children relocated by her and Pastor [B] between 2008 and 2010, and consequently, at risk of serious harm of revenge, for her involvement in the relocation of the said children.

Protection Against Violence in Pakistan

157.   Independent information demonstrates that state protection is inadequate throughout Pakistan. Even where authorities are willing to provide protection to Christians in Pakistan they are significantly constrained.

158.   The UNHCR assesses in its most recent Eligibility Guidelines regarding Pakistan:

'The [Pakistani] government has been criticized for failing to protect Shi'ite Muslims and other minorities from attacks, and for allowing militant organizations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi'ites and other minorities in Pakistan. Despite efforts by regional authorities to provide additional security measures for Shi'ites in some situations, the security situation for Shi'ites has reportedly not improved. Balochistan's civilian law enforcement authorities reportedly expressed a "helplessness and inability to deal with the issue of extremist attacks and sectarian militancy". Even where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi'ites and other minorities.’[1]

[1] UN High Commissioner for Refugees 2017, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minoritiesfrom Pakistan, published: January 2017, available at: p. 58-59.

159.   The US Department of State assesses that throughout Pakistan '[p]olice often failed to protect members of religious minorities - including Christians, Ahmadiyya Muslims, Shi'a Muslims, and Hindus - from attacks.[2]

[2] US Department of State 2017, 2016 Country Reports on Human Rights Practices -Pakistan, published: 3 March  2017,  available  at:   The United States Commission on International Religious Freedom reports in April 2018:

'The government of Pakistan has not addressed the spread of sectarian or religiously motivated intolerant speech and has not prosecuted perpetrators of violent crimes against religious minorities. Despite the existence of specialized antiterrorism courts to deal with extremist suspects, a vast number of extremists have either been released from custody or avoided arrest and prosecution all together. Often, acquittals of terrorist suspects can be attributed to flawed police investigation procedures, which continue to persist across Pakistan's police forces. Rather than addressing these institutional shortcomings, the civilian government gave control over terrorist prosecutions to military tribunals, which have had a higher rate of successful prosecutions but have also been accused of major violations of due process rights and for using torture against suspects.'[3]

[3] United States Commission on International Religious Freedom 2018, USC/RF Annual Report 2018- recommended countries of particular concern - Pakistan, published: 25 April 2018, available at: p. 65.

161.   The Department of Foreign Affairs and Trade (DFAT) assesses:

'The effectiveness of provincial police forces in Pakistan and the challenges faced by these forces vary. However, overall, police capacity in Pakistan is limited, due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Sectarian violence and domestic terrorism diverts resources from community 'policing' to a more incident response and security/guarding role. Popular perception of high levels of police corruption is widespread. Overall, public perception of police is low.'[4]

[4] Department of Foreign Affairs and Trade 2019, DFAT Country Information Report Pakistan, published: 21 February 2019, p. 63.

162.   In addition, DFAT notes:

'Despite measures introduced to curb violence across the country under the NAP­ strengthened powers for military and paramilitary security forces and the establishment of military courts-successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.'[5]

[5] Department of Foreign Affairs and Trade 2019, DFAT Country Information Report Pakistan, published: 21 February 2019, p. 62.

163.   The Tribunal has considered whether the applicant could avail herself of State protection.

164.   The Tribunal accepts independent Country Information that suggests that State protection is inadequate throughout Pakistan and that it is unable to protect Christians and other minorities from attacks. The Tribunal notes Country Information that states that even where the Police have been present, they have been reportedly unable to stop attacks.

165.   The Tribunal also accepts the applicant’s evidence that when she actually fronted up to the police station and made an FIR, the police advised her they could not protect her, and advised her to leave the country.

166.   The Tribunal considered whether the applicant could relocate within Pakistan in order to avoid persecution.

167.   However, the Tribunal notes that this is not a case of a normal Christian attending church – the applicant was attacked not so much for being a Christian but for actively participating in a process of relocation and conversion of Muslim children into Christian orthodoxy, education and a new life.

168.   The Tribunal also accepts that it would not be practicable to relocate with a child. The Tribunal also accepts that the applicant has no substantive family support networks outside Rawalpindi and that neither she nor her husband has family outside of Rawalpindi.

169.   The Tribunal accepts that relocation is not practicable or reasonable in all of the circumstances.

Cumulative claims

170. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that the applicant has suffered harm in the past from a militant group or people associated with them, that she has been threatened in the past and will face threats and actual harm from militant groups upon her return to Pakistan if she returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does have a well-founded fear of persecution for a Convention reason (religion) now, and in the reasonably foreseeable future, if she returns to Pakistan. The feared harm involves systematic and discriminatory conduct. The risk of serious harm to the applicant based on the evidence and country information could not be described as remote or far-fetched. Accordingly, the Tribunal finds that she does satisfy the criterion in section 36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

171. As the Tribunal has determined that the applicant is a refugee in accordance with s36(2)(a), it is not required to consider whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.

Conclusion: Refugee Criterion

172.   Considering all of the above circumstances, both individually and cumulatively, and for the reasons set out above, the Tribunal accepts that if the applicant returns to Pakistan now or in the foreseeable future that there is a real chance she will face serious harm for reasons of her devotion to her religion and being involved in religious activism and conduct grossly offending Muslims. The Tribunal accepts that she has a well-founded fear of persecution for reason of religion and religious activism.

Conclusion: Complementary Protection

173. As the Tribunal has determined that the applicant is a refugee in accordance with s36(2)(a), it is not required to consider whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.

Overall Conclusion:

174. 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).

175. Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal is not required to consider the alternative criterion in s.36(2)(aa).

176. The Tribunal is satisfied that applicant 2 is the husband of the applicant and that applicant 3 is the child of the applicant and as such both are members of the same family unit as the applicant for the purposes of s.36(2)(b)(i). As such, the fate of their applications depends on the outcome of the applicant’s application. It follows that they will be entitled to protection visas provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visas are met. 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

177.   The Tribunal remits the matter for reconsideration with the direction that:

·the applicant satisfies s.36(2)(a) of the Migration Act; and

·the second and third named applicants satisfy s.36(2)(b)(i) of the Migration Act.

Michael Hawkins
Member