1828741 (Refugee)

1828741 (Refugee) [2022] AATA 564 (20 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1828741

COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:20 January 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 20 January 2022 at 1:00pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – successful scheduled caste Hindus – kidnapping – forcible conversion to Islam – forced marriages – perceived betrayal of Hindus – lack of family support – fear of killing – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 31 March 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims rest on his past experiences of persecution, the general circumstances of scheduled caste Hindus in Pakistan and his specific medical health situation.
Country information indicates that: ‘ninety per cent of the Hindu population in Pakistan are the poor and marginalised and they live in communities called ‘Scheduled Castes’, of which there are around 40. The majority are Meghwar, Kohli, Bheel, Walmikis, Wagri, Oadhs, and Bagris; these communities are the poorest of the poor and are mostly neglected in Pakistani society…in certain districts of the province, Hindu residential areas are almost equal in number to the Muslim majority, such as Tharparkar, Umer-Kot, and Mir-PurKhas Districts.’[1]
[1] ‘Poor Marginalised Hindu Women in Pakistan’ by Seema Rana Maheshwary in Violence and Discrimination against Women of Religious Minority Backgrounds in Pakistan, November 2020, >
The Tribunal accepts that [the applicant] is of the Oadh caste.
Past persecution as an indicator of future harm
The applicant gave evidence of his claims that he was forcibly converted to Islam. He explained that in 2008 his cousin, [Cousin A], was forcibly converted. Not wanting to follow their father, two of his children ran away and were given asylum at the house of the applicant’s family. Subsequently, following a separate series of events, they eventually also converted. This background is relevant as the applicant claims that because his father had given them asylum, their family was targeted.
In 2010 he claims that he left Karachi for Larkana to [resume his] studies. At the bus stop at [Town 1], he claims that three people in shalwar kameez came with guns. He said that everyone screamed, he said that they calmed others and said that they were looking for someone specific. They said his name. He tried to hide by tying his laces, but someone approached and asked his name. He lied, saying [another name], but then his wallet was taken from his pocket and they saw that his name was [name]. He was grabbed by the collar and taken off the bus. The armed man told the bus driver to continue on his route even though all of his luggage was still on the bus.
The applicant claims that he was blindfolded and taken by vehicle to a place where he was tied to a chair. He started screaming and shouting but was told that there is no one there to help. He thought that there was some misunderstanding, but they seemed to know his whole family history and about [Cousin A]. He claimed that one person started to preach to him about Islam. He said that he had heard this his whole life and wasn’t interested. But the man explained to him that the reason he was being told this was so that he would become a ‘brother’.
The applicant claims that he was asked if he was hungry. He was fed mutton, but he thought that it was beef, so he spat it out of his mouth and the man slapped him. After that the man commented, ‘we will see how long you can survive without eating’. Instead, they fed him milk or water-soaked bread. They untied him but only to go to the toilet. According to the applicant, this treatment went on for many days.
Then at one point he asked that they finish what they needed to do and let him go. In response they said that they wanted him to convert to Islam. He refused. His clothes were then torn off and he was physically harmed. He claims that he again asked that he be let go. The applicant claims that a man said that ‘we want to convert you as you are an infidel, we want to teach you as you are following the wrong god.’ They kept torturing him and eventually he said to them to do whatever they wanted to do, so then a fourth person came into the room and recited something and asked him to recite it, at that time he didn’t know what it was but later learned that it was the kalima (phrases from the hadith and used as a confirmation of conversion to Islam).
They then gave him food and clothes and congratulated him on becoming a brother. While he was eating, one of the men said that his father had paid for him and that he is now free to go.
The applicant claims that he was blindfolded and then walked a little while. They took off the blindfold at a highway and he was directed to a bus stop. He was given his wallet and phone back. When a bus came, he claims to have asked the driver whether he was going to Karachi and as the bus was headed in that direction he got on.
The applicant said that he arrived at his house in the morning around 5.30am. He said that he was very happy to see his family and that his mother would not let go of him. He claims that around midday he heard a bang on the door and some clergy were standing outside calling for the door to be opened. His father let the clergy in as they had weapons. He claims that they said to his father that he can’t live with them anymore as he has been converted and his name is [an Islamic name].
He claims that it was only then that he realized what he had been asked to say were the words for his conversion. He claims that his father was angry at him, asking why he had done it but the applicant said that he was forced. The clergy, he claims, said to his father that he had to now let him go and if his father did not let him go, they would take him forcibly. He claims that he was crying and was taken forcibly.
The applicant said that he was taken to a madrasa in which there were boys of different ages, some were reading books, some cleaning. He was taken to a cleric who he was told would teach him about Islam. He was given a shalwar kameez to wear, he got a bed sheet and was shown a room where all the boys slept on the floor. The teacher’s name was [Teacher A].
The applicant claims that after a week he built up the courage to speak with him openly. He said to him that he wished to be able to return to his [previous] studies. He claims that [Teacher A] became very angry, asked what his problem was and what was wrong with the circumstances he was in before leaving him. He recalled that other students were amazed at his nerve to ask [Teacher A] such questions.
Three days after he first approached [Teacher A], he claims that [Teacher A] came back and asked him if he wanted to return to his [previous] studies. He was told that he could, but there would be two people with weapons who would be with him at all times.
In total he claims that he was in the madrasa for about 10 days.
I asked why his father couldn’t use his skills and connections, [details deleted], to release him. The applicant said that it didn’t make a difference as his father went to the courts and the police, but they were happy for his son and congratulated him, as they all want Hindus to be converted to Muslims.
The applicant said that his father did try to release the applicant through his friend, [Friend A], whose own daughter had been converted and married to a Muslim. But the applicant noted that [Friend A] wasn’t even able to save his own daughter, so how could he help them.
The applicant subsequently learned that his father had paid his abductors money and that this was the reason he was allowed to continue his studies. When they took him away from Karachi, his father contacted [Leader A], who the applicant claims is a famous and influential Muslim, and asked him to help find his son. [Leader A] found out where his son was being held and then his father, through [Leader A], negotiated with the Mullahs. His father was told that it was not possible to release him but that he could be taken out of the madrasa to complete his studies.
During the period of his resumption of studies the applicant claims that he was allocated two ‘bodyguards’ at all times. He said that these types of ‘mullahs’ were ‘common boys’ who would otherwise be roaming around on the streets. He said that they groom them, they say to them to do something good in the eyes of God. Having them with him doesn’t cost the madrasa anything as he claims that it was his father who had to pay money to sustain him and them. For the boys it gave them a way to have a place to live and a purpose. The applicant claims that they are told that if they do something good such as converting someone to Islam, heaven will be theirs.
When I questioned his claim that he was accompanied for over 3 years by two bodyguards, and yet it appears that no one around him raised an eyebrow, he said that everyone knew that he was a new convert. He said that other Muslims were very happy and excited. His fellow Muslims, he claimed, offered to cut a cake and celebrate for him as they were happy to see a new Muslim among them. He said that the Hindus told him to stay away from them as they saw him as betraying them. He clarified that the two bodyguards were not like the bodyguards of a politician, but they were there to maintain his conversion and to continue his teaching in the faith.
The applicant wrote in his statutory declaration that ‘the Mullahs [a term he used for the body guards] are certain that they have embraced Islam…when the new converted starts following the teachings and practices of Islam properly by going through at least one cycle of their observation which includes going for namaaz five times a day, fasting during the month of Ramadan and celebrating at least one of the two major Muslim festivals Eid-Ul-Fitr or Eid-Ul-Azha etc.).’ Based on this statement, I questioned why he was followed for three cycles (three years). He said that it was because they were getting a financial benefit from his father by keeping tabs on him for longer. In addition, it sent a message to other Hindus to show that even a respected father who has some influence can’t get his son back.
The applicant said that he had been physically harmed by his guards. He said that they used to hit him when he didn’t go on time to prayer. He described one situation in which he was studying and called for help from Bhagwan, the Hindu term for god, and he was hit repeatedly for not saying Allah. Another time he walked into a mosque without taking off his slippers and he was hit badly.
I noted at the hearing the apparent disparity between the family’s success and the applicant’s broader claims of discrimination against lower caste Hindus. The witness explained that his family is an anomaly because his father came out of poverty to become someone important. He said that the quota system allowed the applicant to be admitted into [his] college and as such it has benefitted them but, in most cases, what happens is that the person who is handling applications would claim that no one from scheduled castes applied and so the vacancy would get filled by the majority. Every now and then someone gets lucky, he said. He also described how accessing rental housing is difficult.
He said that the majority of landlords will reject a Hindu, but it is not impossible to find accommodation. This claim is supported by country information that states Hindus ‘generally lack equal access to education, employment and social advancement. The tiny minority of Hindus that remains in the truncated Pakistan of today, continues to find itself vulnerable to exploitation and abuse.’[2]
[2] ‘Poor and Desperate, Pakistani Hindus Accept Islam to Get By’, New York Times, 15 October 2020, and Minority Rights, ‘World Directory of Minorities and Indigenous Peoples: Pakistan Hindus’, information on the situation of Hindus in Pakistan
Arising from the claims made by the applicant, this decision is heavily influenced by an understanding of the situation of Hindus in Pakistan and particularly of the environment within which scheduled castes, such as the applicant, would live was he to return to Pakistan. For a variety of reasons, the country information is often contradictory on this issue. There are credible sources which refer to minimal discrimination and there are credible sources that speak of substantial and severely harmful treatment. Specific country reports by asylum receiving nations, including reports produced by Australia’s Department of Foreign Affairs and Trade, do not provide the necessary depth on the circumstances faced by returnees of the specific profile of the applicant. For this reason, I have laid out the available evidence on each side and then in the discussion of the country information I have explained why I have given greater weight to some and less weight to others.
Country information that supports a view of forced conversions
Al Jazeera has provided considerable reporting on the situation of Pakistan’s Hindus. In one article[3] from 2014 the journalist interviews primary sources regarding threats to life of a scheduled caste Hindu whose daughters have been forcibly taken from them. The article notes that, ‘While upper-caste Hindus complain of their traders being kidnapped for ransom, lower-caste Hindus say their daughters are being targeted.’ A politician is interviewed who states, ‘Unfortunately, the frequency of these crimes is increasing due to religious extremism.’ The piece, though, also shows how the drive for marriage across religious boundaries can be for love and that sometimes the push back against it is by the Hindu family arguing, in this case, that a Muslim-Hindu marriage is unwanted. The article quotes the Human Rights Commission of Pakistan chair, Zohra Yusuf, saying that many Muslim girls are kidnapped in Pakistan, but, ‘if you compare the number of kidnapped Hindu and Muslim girls, in relation to their population in Pakistan, you will see that Hindus are more vulnerable.’ Without financial and political clout, one father says, there is little they can do to get their daughters back. Sindh province’s senior police officer was quoted as saying, ‘The problem is that while some cases are actually forced conversions, others are love marriages and there is no way for us to differentiate between them.’ I place some weight on this article as it is firsthand reporting of examples, but it does not provide insights into the broader situation and the prevalence of these examples.
[3] ‘Forced conversions torment Pakistan’s Hindus,’ Al Jazeera, 18 August 2014 >
A 2015 report by the South Asia Partnership-Pakistan in collaboration with Aurat Foundation found that that at least 1,000 girls are forcibly converted to Islam in Pakistan every year. The report stated that the conversions take place in the Thar region, particularly in the districts of Umerkot, Tharparkar, Mirpur Khas, Sanghar, Ghotki and Jacobabad. The report identified landlords, extremist religious groups, weak local courts and an insensitive administration as collectively creating an environment that allows forced conversions.[4]
[4] ‘In Pakistan, the problem of forced conversions,’ The Hindu, 13 April 2019, type="1">
A report published by the University of Birmingham, Forced Conversions and Forced Marriages In Sindh, Pakistan,[5] published in 2018, strongly argued that the abductions of Hindu girls is occurring and that Hindus have little recourse as there are structural impediments:
The police will often either refuse to record a First Information Report or falsify the information, thereby denying families the chance to take their case any further. Both the lower and higher courts of Pakistan have failed to follow proper procedures in cases that involve accusations of forced marriage and forced conversions. The judiciary are often subject to fear of reprisal from extremist elements, in other cases the judicial officers’ personal beliefs influence them into accepting the claims made that the woman/girl converted on her own free will.
[5] Forced Conversions & Forced Marriages In Sindh, Pakistan, University of Birmingham, 2018, >
This report, though, has limited references to support its claims and is structured more as an advocacy piece with recommendations for UK parliamentarians. I give it little weight as a primary source of information.
Poor Marginalised Hindu Women in Pakistan,[6] a report by Seema Rana Maheshwary, is one of the most well researched involving focus group discussions with 46 Hindu women in Pakistan. The participants were male and female Hindu schedule castes. The report acknowledged its methodological weaknesses but nevertheless built on the opportunity of in-depth discussions on key issues facing Hindu scheduled castes. Discrimination based upon religious identity ranked as the highest threat identified by females in the focus groups.
[6] ‘Poor Marginalised Hindu Women in Pakistan’ by Seema Rana Maheshwary in Violence and Discrimination against Women of Religious Minority Backgrounds in Pakistan, November 2020, >
Some of the quotes from participants included:
A participant (woman aged 18–35) who works in a factory:
My male colleagues told me, ‘Don’t you feel unethical, wearing such a dress? Shame on you and your males who don’t stop you wearing naked clothes. It’s better to either change your way of dressing or leave this job.’
A man explained,
Hindus also have to face trouble to find houses on rent, we have to search areas where Hindus are living in thick population. Others are denied to rent a house. Me and my sons were looking to rent a house in Kharadar area, where we were refused by at least three owners when they came to know that we are Hindus. They said we can’t allow any Hindu to be a resident here. When I asked, ‘Are we not human beings?’, one of them said, ‘You are human being but not a Muslim and we do not want to adjust to any non-Muslim here’.
When asked if there have been cases of forced conversion in their community, nearly all participants in the focus groups said yes. When the question was asked whether men and women face the same issues, the response was split. When asked if they ever felt it might be necessary for them or members of the Hindu community to abandon their faith and convert to another religion to feel safe, about a quarter said yes, a third no and the remainder were unsure or had no answer.
The Human Rights Commission of Pakistan wrote a report, Minorities under attack: Faith-based discrimination and violence in Pakistan,[7] based upon two workshops in 2010 and 2014 with community and religious representatives throughout Pakistan. The report concludes:
Over the past several decades, successive governments in Pakistan have created and perpetuated an institutionalised discrimination against members of religious minority groups and minority Muslim sects from different parts of Pakistan. Discrimination in law and practice is still witnessed notably through a separate list for Ahmadi voters; the absence of codified personal law for Hindus and Sikhs; and the lack of effective representation for religious minority groups.
Hatred is being fomented in society through the inappropriate representation of minorities in curricula and in school textbooks, and children are being denied the right to choose the religion they wish to study, if any.
Perpetrators of faith-based violence do not fear justice due to rampant impunity for such crimes, which in turn fuels the perpetration of further crimes. The judges and lawyers involved in the prosecution of these crimes are prevented from operating due to the absence of or inadequate protection of their individual safety.
The Pakistani authorities have failed to ensure equality, dignity, rule of law and the protection of human rights of all Pakistanis, and thus rendered themselves responsible for serious violations of international human rights law.
Religious persecution constitutes a serious attack on human dignity or grave humiliation or a degradation of human beings. When this is part of a widespread and systematic practice, which is the case in Pakistan, these attacks can be qualified as a crime against humanity.
[7] Minorities under attack: Faith-based discrimination and violence in Pakistan, Human Rights Commission of Pakistan, >
Because of the widespread involvement of various community groups in the development of this report and the involvement of an influential and well-respected body, the Human Rights Commission of Pakistan, I give this report considerable weight.
I note the blasphemy laws in Pakistan are of concern to minorities:
Members of the Shia sect, Christians, and other religious minorities remain at risk of blasphemy accusations that can arise from trivial disputes and escalate to criminal prosecution and mob violence. The blasphemy laws and their exploitation by religious vigilantes have also curtailed freedom of expression by Muslims.[8]
[8] ‘Freedom in the World 2021: Pakistan’, Freedom House, >
The organisation Minority Rights describes the situation of Hindus in Pakistan as:
Members of the Hindu minority in Pakistan fear persistent harassment at the hands of religious extremists and complain that there is little official protection accorded to them. Hindu activists argue that ‘secret files are kept on them and their integrity is always in question. They are not allowed into the armed forces, the judiciary or responsible positions in the civil service’. These allegations are substantiated by the facts, which reflect an almost negligible Hindu presence in the higher echelons of the administration, bureaucracy and armed forces. Discrimination and prejudice against the Hindus is reinforced by the religious orthodoxy, within educational institutions as well as by the state-controlled media. As a consequence of the oppression and discrimination, the last two decades have seen a steady exodus of Hindus from Pakistan. This exodus, however, has left behind a community that is most vulnerable and in urgent need of socio-economic protection.[9]
[9] Minority Rights Report: Pakistan, >
I give this considerable weight due to the reputation of Minority Rights.
The alternative country information regarding forced conversions
In a news article, Amar Guriro, a Karachi-based journalist who has been covering religious minorities for over a decade, is reported as describing the situation as "exaggerated":
“No doubt, there could be some genuine cases of forced conversion of Hindu or other minority girls in the country, but it is not as widespread as it is depicted,” Guriro told Anadolu Agency.
“Both (Hindu and Muslim) communities have been living together in Sindh for centuries. Sindhi Muslims traditionally harbor sympathies for Sindhi Hindus. Forced conversion is not that easy here,” he went on to argue.
“Abduction of girls, whether Hindu or Muslim, has nothing to do with religion or conversion. It is a general phenomenon in rural areas, involving powerful people in stereotype feudal Sindh province of Pakistan, where a majority of Pakistani Hindus live,” he added.[10]
[10] ‘No 'evidence' of forced conversion to Islam in Pakistan: Study’, 18 October 2021, >
Noting the competing narratives, Doctoral Fellow from the Quaid-i-Azam University in Islamabad, Ghulam Hussain, undertook a review of the reporting and published the findings in a scholarly journal under the title, ‘Faith Conversion in Pakistan: Projections and Interpretations’[11]. The key findings were:
1.     ‘Claims of forced conversions are politically motivated and do not take into account multiple push and pull factors that lead to religious conversion.’
2.     ‘i) the alleged figure of 1000 women and girls being forcibly converted to Islam every year is only rhetorical; ii) the reports lack primary evidence; and iii) the statements and figures are tautological. The evidence presented in these reports is so scant and elusive that they do not lead to any verifiable information.’
3.     ‘the location of social media outlets projecting the narrative of forced conversion is traced to show how the issue of 'forced' conversion in Pakistan is generated by those virtually located outside Pakistan.’
[11] Hussain, G. (2020). Faith Conversions in Pakistan: Projections and Interpretations. Policy Perspectives, 17(2), 5–26.
This academic paper focuses on social media posting, which limits the study’s value. It finds that foreign efforts to raise the issue of forced conversion are binary, when in reality, the author argues, there are many reasons for individual conversions. While this may be true, it does not necessarily negate the possibility of there being a considerable number of incidents which are amplified, as opposed to being created, by Western social media users. The fact that there isn’t as much social media noise being created in Pakistan could be for a number of reasons, including lack of access to technology by victims who are reportedly predominantly poor and fear repercussions. In addition, the author appears to completely dismiss the possibility that even in a few cases the reasons for conversion may be direct intimidation, threat and the use of force. The paper presents a wide array of alternative pull and push factors but ignores the one claimed to be at the heart of the issue. For these various reasons, I place limited weight on the value of this paper.
The same author was the lead author of a report by the Institute of Policy Studies, Islamabad. The report concludes, ‘There is no evidence suggesting that non-Muslims, including underage girls, have been forcibly converted to Islam in Sindh.’ The research was claimed to have been undertaken based upon 10 years of episodic fieldwork, interviews with a cross-section of Sindhi society, and statistical analysis of data acquired from seminaries and courts across the province. In response to this report a Hindu parliamentarian was quoted as saying, ‘the government itself acknowledged that the issue exists in "three to four districts".’[12]
[12] ‘No 'evidence' of forced conversion to Islam in Pakistan: Study’, 18 October 2021, >
In the IPS report[13] the focus is turned to the Hindu cultural and religious constraints which limit the lives of the poor scheduled castes, and in particular women:
The study also underscores the narrative internal to minority communities, particularly Dalits, and found that irrespective of the influence of religious clerics or dominant Muslim communities, the young girls and women have acquired some agency to transcend the domestic or familial pressure of the patriarchs to challenge ‘forced’ marriages, and to break caste-based and religious barriers. Some Dalit activists maintain that the narrative of ‘forced’ conversion is being projected by the privileged caste Hindus to maintain their hegemony over the emerging political class of Dalits.
[13] >
The report notes that the much publicised 1,000 minority girls being forced into marriage every year, or an alternative claim of 20-25 per month, is not supported by evidence. The report traces the narrative and shows that there is no primary evidence to support this claim. The report critically analyses 13 NGO reports that refer to that figure and none show any reference to primary research. This research is convincing as it shows that there is no basis for these figures. The report also systematically critiques many other reports, including the Aurat Foundation report I referenced in the earlier section.
The author published another academic paper in 2021[14] which consolidated evidence from fieldwork. The data used by the author is diverse:
The research was based on a mixed-method approach, involving both theoretical and purposive sampling. The datasets consisted of the content analysis of 19 NGO reports, 400+ audio recordings, and 200 in-depth audio-visual interviews with a cross-section of Muslim and non-Muslim population. The quantitative part of the data was statistically analyzed. The sample consisted of 6,055 cases of the converts taken from Sindh that houses over 4.6 million (4,620,403) non-Muslim Pakistanis (as per the 2017 census) documented and collected during the period from 2008 to 2020.
[14] Hussain, G. (2021). Religious Conversions in Pakistan: Empirical Evidence from Sindh. Policy Perspectives, 18(1), 5–24
While the 2021 article has shown extensive research, I am concerned that it does not give any consideration to whether the focus groups could have been influenced by the religion of the focus group leaders, and in addition there appears throughout the article a nationalistic and religious bias. At some stages the article hints at there being some coercion but does not follow up, for example, ‘In almost all cases that this study could look into, the court was finally convinced of the freewill for conversion.’ If it is ‘almost all cases’, then there must have been some that weren’t of freewill, but nothing more is said despite this being at the heart of the research undertaken. While there appears to have been an extensive effort undertaken by this researcher, the methodology and the approach to the paper is seriously flawed and as such I place moderate weight on it.
In the 2018 national elections three Hindus won seats in the Sindh Province on general lists separate from those reserved seats for minorities. This was the first time that this has occurred in Pakistan’s history and indicates a willingness for the broader public to support non-Muslim candidates.[15]
[15] Pakistan election: Muslim-majority areas elect 3 Hindu candidates in Sindh,’ 31 July 2018
A website that has been prominent in presenting information about harm against Hindus in Pakistan and was referenced by the representative in submissions for this case, is OpIndia. But in researching the background of this website I found it has been identified as having serious concerns over its truthfulness: ‘A dataset prepared by Newslaundry shows that in the last two years alone, fact-checkers and news outlets have reported at least 25 instances of false news and no less than 14 instances of misreporting on OpIndia.’[16]
[16] ‘OpIndia: Hate speech, vanishing advertisers, and an undisclosed BJP connection’, 23 June 2020, >
Most recently there was a lot of news about the purported conversion of 60 Hindus in Malti Municipality. Follow up reporting on this case sees the impetus for conversion arising from the financial status of the group and in particular members of the group wanting to be released from landed bondage.[17]
[17] Forced conversion of Hindus continues to rise in Pakistan,’ 14 July 2021, >
The most widely investigated case of claimed forced conversion is that of two sisters Reena and Raveena. This case was considered by the Islamabad High Court and garnered international attention as a case of forced conversion, including in the Australian press.[18] The two women at the centre of the controversy claimed not to have been forcibly converted while their parents fought their marriage to Muslim men as well as the legitimacy of their conversion. In reporting that has followed up on the case years later, it appears that the women have remained with their husbands and have reconciled with their parents, reinforcing their claims that they had voluntarily converted and married.[19]
[18] ‘Hindu sisters Reena and Raveena become face of forced religious conversion in Pakistan,’ 26 July 2019, ‘Hindu sisters who married Muslim men reconcile with families,’ 5 June 2020, >
Al Jazeera reports that Pakistan’s Islamic Council approved construction of a Hindu temple in Islamabad and notes that ‘Muslims and Hindus generally live peacefully together in Pakistan, but there have been incidents in which Hindu girls were forcibly converted to Islam.’[20]
[20] ‘Pakistan’s top Islamic body approves construction of Hindu temple,’ 29 October 2020 >
I checked the South Asia Terrorism portal to see the extent of violent acts against Hindus. Between 2009 and 2021 a total of 23 incidents were recorded and the majority relate to blasphemy charges.
Consideration of country information on forced conversions
The country information presented above is in some instances contradictory. Yet, the research supporting both perspectives is robust and the reporting is from reputable sources. Overall, the common ground appears to be that there is a large flow of conversions that occur for various reasons and that it is voluntary. It could be to escape a poverty trap that is built on the pervasiveness of caste in Hindu communities or simply the pursuit of love that would otherwise be forbidden. The difference between the various reports centres on the extent to which there are forced conversions. I am satisfied that the figure is not nearly as high as has been claimed by some NGOs, but nor am I convinced that it does not exist as one scholar appears to advocate. I find that there are instances of forced conversion and as such cannot rule out the possibility that the experiences of the applicant can be supported by country information.
Other relevant country information
Other relevant country information describes Pakistan as:
a.     ‘Religious minorities continue to be targeted violently in Pakistan, but fortunately not at the levels of previous years. However, this doesn’t mean they’re not threatened—Shias and especially Ahmadis, along with Christians and Hindus, continue to face systematic discrimination. There are reports of religious conversions of Hindus under questionable circumstances. And blasphemy laws have continued to be exploited by hardliners to target religious minorities. Pakistan remains a very intolerant place, even if it’s not as violent as it used to be.’[21]
b.     ‘After arriving in the Indian city of Amritsar, the religious refugees said they did not want to return because the situation for Hindus and Sikhs in an overwhelmingly Muslim Pakistan had grown intolerable. The Head of the Delhi Sikh Gurdwara Management Committee, Manjinder Singh Sirsa, met with those who were forced to flee, saying the Sikhs and Hindu minority communities in Pakistan have recently been forced to leave their country after being threatened with violence solely because they were not Muslims. “The committee informed the Indian government about the religious persecution of the Hindu and Sikh minorities in Pakistan. We will soon meet Home Minister Amit Shah and will request that the government grant citizenship to these immigrants,” Manjinder Singh Sirsa said.’[22]
c.     ‘The majority of the Oad community moved to Balochistan and Punjab in search of work and initially succeeded in finding some but then other social problems made their lives quite miserable. For instance, in Punjab, there is a major issue of discrimination against lower-class Hindus and people avoid sitting or eating with them; the children of the Oad community are not allowed to attend schools where the local children go.’[23]
[21] EASO, ‘Country of Information Report – Pakistan Security Situation’ (October 2020), at p. 58
[22] Tamar Svanidze, ‘Hindus and Sikhs from Pakistan flee to India fearing prosecution’ (7 February 2020), Sahib Khan, ‘Oadki houses: A dying art’, Dawn, 18 August 2013, type="1">
I also accept the country information that describes widespread discrimination both societal and institutional. I find that such discrimination described by country information can amount to serious harm in some cases depending upon the individual applicant’s circumstances.
The applicant’s medical conditions
The applicant claimed that his doctor told him that he has [a medical condition] and that it has a different form than that which is most common. [Details deleted]. As it is a birth defect he claimed that it is unlikely that it can be cured. He claims to suffer from cramps and pain. Surgery is an option, but the risk of a mistake is paralysis. The applicant said that he has to [deleted].
The applicant’s general practitioner wrote that the applicant has been dealing with anxiety, depression and [another condition] for the past several years. He wrote that it was recommended that the applicant see a psychologist in 2016, at which point he was prescribed various medications.
The applicant also submitted a letter from [a named] counsellor and consultant. The letter states that he has been seeing the applicant for the treatment of depression, anxiety, [and specified disorders]. The letter states that he was diagnosed with these disorders by his GP.
A letter was submitted by a registered medical practitioner [professional registration details deleted]. The letter explained the diagnosis of the applicant’s [condition]. The letter included the following:
[Details deleted].
Considerations
The applicant’s story is an incredible one. It borders on the implausible, but for the way he presented the evidence so credibly. The applicant’s narration in his earlier submissions has not change and he has provided a level of detail at various aspects, whether it’s how other boys at the madrasa reacted to him when he was so impertinent to ask a question of the [teacher] or how he was received by his family, that was spontaneous, detailed and convincing. When considering the implausibility of claims I bear in mind that the applicant can be the exception to what otherwise is implausible.
I also note that the applicant has family dispersed throughout the world but not in Pakistan. It was put to the Tribunal by both the applicant and the witness, his brother, that their father had started to get his family out when he had seen the situation for them was deteriorating. The two siblings that the applicant has in Australia have both been granted protection visas on a similar set of claims as the applicant. I note the Department’s grant notices for both siblings refer to claims of their brother, the applicant, being kidnapped and forcibly converted. There are divergences in their claims that raise concerns. Some of these were put to the witness who said that he did not know firsthand what had happened to his brother but had received information through others and so the discrepancies were based on what was known at the time. While I accept this explanation to a degree, some of the discrepancies, particularly in the sister’s claims, are of concern. Nevertheless, I note that the Australian government has granted two protection visas to two of the applicant’s siblings for reasons that are based in part on the applicant’s kidnapping and in large part on the plight of schedule caste Hindus. In other words, the fear of what happened to the applicant in this case led the Department to grant his siblings protection visas but strangely not to the applicant who had experienced the harm.
In addition to the applicant’s evidence being convincing I note that country information does lend some support to his claims. While the problem of forced conversions appears to be exaggerated it is not unknown. For the reasons of the oral evidence of the applicant and witness being compelling and country information indicating the possibility of such occurrences I find that the applicant’s claimed experiences are fact. I find that the applicant was kidnapped as described, that he was harmed, that he was accompanied throughout his studies and that he escaped Pakistan as described.
The narration of events the applicant experienced suggests a targeted approach. The targeting was in part because the family had come to the attention of the particular madrasa but also, I suspect, because they were successful scheduled caste Hindus. While the poor and downtrodden scheduled caste Hindus who are desperate for an opportunity to be seen differently to their caste designation may have social and financial motivations to convert, the applicant and his family did not. For this reason, the family’s success in overcoming hardship is a cause for their fears and does not undermine the general information about the situation of scheduled caste Hindus.
Having accepted the applicant’s claims of past harm, noting country information and taking into account the applicant’s specific family circumstances, I find that the applicant faces a real chance of serious harm in the form of being targeted again by those who kidnapped him before or by others who are intent on converting the applicant specifically or those with the applicant’s profile.
While it could be argued that the applicant spoke the kalima and is therefore Muslim, which would have led my reasoning along a different pathway (would he face harm as a Muslim?), I do not accept that he is Muslim. The Koran’s well-known verse ‘there is no compulsion in religion’ (2:256) is widely accepted among Islamic scholars as the basis upon which forced conversions are not considered legitimate.[24] Furthermore, the applicant sees himself as Hindu, he attends temple, he has not practiced Islam, and he refuses to accept Islam. I find that he is Hindu. For this reason, I find that the essential and significant reason for the harm he faces is religion.
[24] Explanations available at >
I find that the harm he faces is systematic and discriminatory as the intention is specific, that is an intention to create an outcome that would lead to serious harm in the form of forcing him, potentially through coercion, to adopt a faith he does not want to adopt.
I find that the applicant cannot be expected to modify his behaviour such that he would no longer be a target of those who would seek to convert him. This action would require him to present as Muslim and as such would breach s 5J(3)(a), as it would conflict with a characteristic that is fundamental to the person’s identity or conscience.
In considering the option of whether the real chance of serious harm the applicant faces relates to all areas of the receiving country (s 5J(1)(c)) I noted to the applicant country information that suggests that there are Hindu majority areas. The applicant said that it does not mean that they are safe. He said that Hindus have been targeted there also. He said that there are opportunities to convert people as most are from poorer backgrounds and are financially pressured. He said that because he is from a scheduled caste, regardless of wealth he would be treated as a lower caste. He also fears that he would be killed by Hindus because he converted out of Hinduism. Caste will always be used against him regardless of how much money he has, he claimed. I asked if being [qualified in his profession] would give him some special leeway. He said that it doesn’t matter what education you have. The Hindus would stay away from him, but Muslims would seek to harm him.
I note that in considering whether the applicant could move to another area of Pakistan, I must take into consideration the applicant’s specific circumstances including his medical [conditions], lack of family to provide protection and support during the transition, the reach of those who would seek to convert him and the prevalence of discrimination in the location. Noting these specific circumstances, I find that the applicant faces harm in all areas of Pakistan.
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Denis Dragovic
Senior Member

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.
…

[2022] AATA 564

20 January 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness