1829436 (Refugee)

[2022] AATA 981

1829436 (Refugee) [2022] AATA 981 (10 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829436

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:10 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(aa) of the Migration Act.

Statement made on 10 February 2022 at 9:37am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Hindu – forcible conversions – abductions – particular social group – scheduled caste – Hindus living in Karachi – official and societal discrimination – internal relocation – Umerkot – complementary protection – reasonableness of relocation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
FCS17 v MHA [2020] FCAFC 68

MZACX v MIBP [2016] FCA 1212
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
MZZJY v MIBP [2014] FCA 1394

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 the delegate of the Minister for Home Affairs on 27 September 2018 refusing to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants comprise a family of a father, mother and three children, who claim to be citizens of Pakistan. The applicants applied for the visas on 31 March 2017. The delegate refused to grant the visas on the basis that she was not satisfied that some of the claimed incidents occurred as well as noting that ‘country information does not support that in Pakistan, Hindu families, as opposed to young teenage girls, are being abducted and forcibly converted to Islam.’

3. The applicants appeared before the Tribunal on 11 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The hearing was conducted as a joint hearing together with the application of a fifth member of the family, the oldest son of the first two named applicants. Evidence provided by the oldest son is accepted as evidence given as a witness to the family’s application.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Evidence and findings of fact

12. The first named applicant who is the husband (“the husband”) of the second named applicant (“the wife”) and father of the other applicants was born into a Hindu family, with [number of siblings]. All of his siblings remain in Pakistan. [Two siblings] live in Khairpur, Sindh, while the other siblings are in Hyderabad. He is married and together with his wife, the second named applicant, they have two sons, the witness (“the oldest son”) and the fifth named applicant and two daughters, the third and fourth named applicants.

13. The wife has a family of [number] siblings. Her father has passed away while her mother remains alive. Of the wife’s siblings, some are in Australia and some are in other countries. None are in Pakistan.

14. The husband gave evidence that professionally Oads, being the family/sub-caste that the applicants claim to be from, are labourers and scheduled caste. Oad means ‘constructing from mud’, he explained, as their profession has been making walls with mud. The husband claimed that he was born into a labourer’s family.

15. Country information indicates that:

    [N]inety 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 (Indian Institute of Dalit Studies 2008)…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 >

    I accept that the applicants are of the Oadh scheduled caste based upon [evidence] provided relating to their backgrounds which I have found aligns with country information.

    Discrimination

16. The husband claims that they faced a lot of discrimination. He claimed that his father wanted him to get out of the life that they faced, so he endeavoured to give him an education. Despite moving to different towns his father claimed that they always faced the same discriminatory treatment.

17. The husband said that Muslims never allow people such as him to get a better position in life other than through education. In 1990 he graduated from high school while his parents were still working as labourers. He claimed that in the same year he moved to Karachi as it had better job opportunities compared to the rural areas where he was living.

18. He claims that because he is a Hindu, he would not get enough job opportunities. He said that he couldn’t find accommodation. He said that even working through a real estate agent in search of accommodation didn’t help as when he gave his ID card the agent could see that he was non-Muslim and as a result a house couldn’t be found. The alternative way in Pakistan to find accommodation is through private rental but he said that even that was difficult as when he would go to a house his surname and history would give away that he was Hindu. The landlords would say that he can’t rent it because they want to maintain the purity of the house, and they did not want it defiled by a Hindu. He claims that this was the reason he went to live in a Christian community.

19. When he looked for jobs, he claims that employers would see his ID card and say that they didn’t have jobs for Hindus. He said that he was not welcomed, he couldn’t even go out and eat openly in society, he claimed. He then found a job with [Employer 1], in the [specified] section. Once he began the job, he said that the discrimination continued. He said that his medical tests were delayed and people at work looked at him poorly. He claimed that he faced other discrimination such as not being allowed to touch things, his boss hated him, and few people spoke to him.

20. I asked the applicant about the benefits of being of a scheduled caste. He said that he used to apply for jobs under the scheduled caste quota system, but it wasn’t a fair system, as even those vacancies were filled by Muslims. When he got the [Occupation 1] job at [Employer 1], he could see that the quota for the scheduled caste was filled in lowly positions such as cleaners and even among them there were Muslims taking up scheduled caste positions.

21. He said that [Employer 1] is [a large national employer]. As a way to show people that the quota is kept, they occasionally employ people under this system. He had marked in his application that he wanted to be considered under this quota system but said that when the list of hires came out, he was the only one who was appointed under the quota.

22. In 1994 he said that he got to know other scheduled caste families and subsequently married the daughter of [an official] in [a government] department, who is the second named applicant, who was also an Oad.

23. In his scheduled caste he claims that only three or four families have professional jobs. He said that he had lived with discrimination all of his life and his father had to as well, so he worries now about his children. He claims that his oldest son couldn’t get admitted into public school and his other children faced discrimination. He said that the discrimination was increasing compared to when he was young. He said that he applied to seven schools for his children and five refused him. Even the two schools where they were admitted said that they had to sit separately and eat separately at the canteen. He said that in Pakistan school admission forms have a column for religion and as soon as you write Hindu, he claimed that he would be told directly that they don’t accept Hindus, or alternatively some would give an excuse and refuse them, but he knew that it was an excuse as other children in his neighbourhood would be accepted.

24. The husband said that Hindus couldn’t openly show Hindu expressions such as greetings or eat outside during Ramadan. In offices or schools Hindus are not allowed to eat with Muslims. He said that he had to eat at his own table or sit separately, even for farewell parties. In such cases a separate table was arranged and he would be expected not to eat from the same plates as the Muslims.

25. He claimed that discrimination became worse after the events of September 11, 2001. He claims that Hindu families were being attacked. At his job he said that he would face hatred and that people would openly blame him for delays simply because he was Hindu.

26. In a written submission it was claimed that ‘During [Ramadan and Eid] it was common for Mullahs from local mosque to come to their house to advise their family to convert to Islam.’

27. I asked who was doing the discriminating, and specifically whether it was from other Hindus or solely from Muslims. The applicants answered that it was mostly Muslims, but because they were scheduled caste, even upper caste Hindus don’t tolerate them flourishing. An example was given of there being other Hindus in school who wouldn’t want to interact with them as they are Oad.

28. The oldest son gave evidence. He said that even if quotas for scheduled castes were for 100 people, only a minimal number will be given quota jobs. When he was in year 11, he was looking at university and noted that there were quotas, but he saw that the quotas were for show. He said that corruption was prevalent in influencing who filled the quotas. He said that even for mundane activities like going to a bank he was treated like a nobody. He noted that when he was at school he would be sitting alone as no one would sit with Hindus and the Muslims would tell them that they should be eating beef even though they don’t eat beef. During Ramadan they would have to pretend that they were fasting.

29. The wife gave evidence. She said that when she was growing up as a scheduled caste she would have two or three other friends who were also scheduled caste and they were made to sit in a separate area. When other students provoked them, the teacher would respond that they are scheduled caste and don’t have the right to complain. She claims that they would be disrespected and stated that there were no classes for their language and that there was persistent discrimination against them.

30. The third named applicant gave examples of harassment at school including two girls who spat on the floor and forced her to lick it and of being hit and beaten. When she complained to the teacher, the teacher said that she has no right to complain. She was told that she has no worth, that she is like a worm and that she is there only for cleaning. In year 8, she said that her maths teacher told her that she was there just to clean and that she had to clean his car and if she didn’t, he would fail her. She claimed that for the whole semester she would regularly clean his car.

31. She said that there was a male accountant from among the staff at the school who sexually assaulted her. She went to the principal to complain, and the principal said that the third named applicant is a scheduled caste and as such she did not believe her, saying, ‘who would try to touch you?’ She claims that she had to complete year 11 and 12 at home because the school told her that she was defaming the school.

32. Near the close of the hearing the two daughters requested that they provide evidence separate from their family members and without them present. They requested that the information not be made available and known to their family members. The evidence relates to their period at school when they were teenagers.

33. The specifics of the incidents reinforce country information and as such I accept that the two daughters encountered sexual harassment which was based upon their religious identity while they were at school. I have not detailed it as were they to return and looking into the reasonably foreseeable future they will not be returning to school but note the implications of the past harm as being indicative of the type of discrimination they fear.

34. They added that any of the Muslim boys could forcibly marry them. They said that Muslim boys could do whatever they wanted and that they had no power as Hindus. They described how teachers would not only ignore complaints but be perpetrators of sexual harassment including with the justification that physical contact will be good as it will purify them.

35. The third named applicant who is currently studying medicine at an Australian university on a scholarship said that education and religion are the most important things in her life. But living in Pakistan as a Hindu did not allow her to move forward in either as without undertaking Islamic studies she could not have progressed to university.

36. Country information supports her claims. During her schooling new education policies were introduced that focused on Islam, Islamic identity and Arabic:[2]

    a.‘Education Policy of 1992…followed the imprints of the previous policy and emphasized the construction of Pakistani identity in the context of Muslim Ummah. It focused on the idea that Islamic ethos would be employed in moral character building of citizens. Islamic moral values were the basis of Pakistani citizenship rather than western ones. Furthermore, it had directed to introduce Muslim Social Studies as subject to create Pakistani identity into Muslim Ummah context.’

    b.‘Education Policy 1998 and Construction of Pakistani Identity: This piece of legislation is quite unique and distinct in contrast to all previous education policies (1947, 1959, 1969,1970,1972,1979 and 1992). The foremost uniqueness of this policy was the word IQRA written on the main page of the policy document. It was the only policy document that contained the verses of Holy Quran cited as reference to support the policy statements. The forward of policy argued to be Muslim first and then Pakistani citizens. The policy of 1998 was the only document where the justification for identity formation was exclusively based on Islam. The citizenship of Pakistan is exclusively constructed in the context of Muslim Ummah. It seemed that policymakers had vigilantly ousted minorities from the ambit of Pakistani citizenship. This policy paper had promoted narrative that Pakistan only belong to Muslims wherein minorities had no stake in Pakistani society.’ [bold added]

    c.‘1992 Policy Paper on Compulsory Islamic Education: Class: 1 to degree level including Profession Education. Arabic was made compulsory from V–VIII.’

    d.‘1998 Policy Paper on Compulsory Islamic Education: Class: 1 to degree level including Profession Education. Arabic was made compulsory from V–VIII. Nazira Quran from I–VIII’

    [2] Shafiq Qurban and Husnul Amin, ‘Education Policies, Discourse of Ideology and the Construction of National Identity in Pakistan: A Critical Analysis,’ Global Regional Review, Vol. IV, No. III (Summer 2019) >

    The wife said that the situation has become worse, and it is unsafe to go outside of the house. She said that girls and boys were being taken. She said that her father had told her not to go out of the house when she was young and advised her not to tell others of her name which would identify her as Hindu. She said that this is the reason she married early.

37. The fifth named applicant, the youngest son, gave evidence. He said that he was forced at school to learn about Islam as Islamic studies were compulsory. He said that teachers would take him to their offices and try to pressure him to say the kalima (portions of the hadith that are used to confirm conversion to Islam), but as he would not do it, he would get hit. He would complain to his parents but all they could do is to change the school. He said that he would try to fake his name when he started at a new school, but others would find out and abuse him including spitting in his food, hitting him, locking him in the toilet or calling at him to move away as a ‘kafir’. His Islamic teacher would say that Allah would punish him. He felt that he was targeted. He said that when his parents would engage with the teachers, they would placate them but then find ways to obtain retribution. He said that he would beg his mum not to send him to school.

1. The husband said that when the children told him about their plight, he went to the school to ask for an alternate class but would be given an excuse that they don’t have a teacher and then the children would have marks deducted.

2. I noted that they had a Muslim driver and asked how this was possible. The husband said that the driver was a good person and that there were not many opportunities to find work. He said that anyone who finds a job wants to take it but even that said, the driver wouldn’t eat with them.

   Targeted threats and attacks

3. The husband claimed that in 2008 his cousin [Dr A] was kidnapped and forcibly converted in Larkana. He said that by then it had become the norm to kidnap and convert Hindus; this was the first instance of it happening to a family member. While he was growing up it used to be rare that people would get kidnapped and converted, but then it started to happen.

4. He claimed that in 2010, his brother-in-law, [Mr B], was kidnapped and converted.

5. As a result, he said that they became fearful of leaving the house. They feared it was their turn. He said that his father-in-law told him that Muslims are powerful and that Hindus are unable to fight them. So, he recommended that they look for overseas options. His father-in-law’s children started to settle abroad in [country], Australia and other countries. As they were moving out, the husband became more fearful. From 2012 he claims to have started to get phone threats from Tahreek-e-Taliban (Pakistan) (TTP). The messages he would receive were that he and his Hindu family should not be in Pakistan and their objective is to finish all non-Muslims so that only Muslims should rule the world. They would abuse him and his Hindu Gods. He said that he stopped answering the calls, but they would keep calling from different numbers.

6. The threats were that either he and his family convert, or they will kill him. Then, he claimed, they started throwing pamphlets on the house. He said that the phone threats led to him changing his phone number, but after a few months they started again. It escalated to people knocking on his door and threatening him directly.

7. The husband claims that in February 2015 they attacked his children.

8. The applicants gave evidence that they had experienced two attacks. The first was in October 2014 and involved the children. They claimed that they were travelling with their family driver to a local shopping centre. As they tried to enter the parking lot their car was surrounded by strangers travelling in cars and on motorcycles. It was claimed that these men tried to grab the youngest son. The men threatened that the family would be killed if they do not convert to Islam. They then released the youngest son and drove away. The oldest son explained that their mother rarely allowed them out but in this instance she did. He described the incident as four or five men trying to take the youngest son away with one of the attackers saying ‘you kafirs, don’t you understand, doesn’t your father understand.’ He said that the attackers were swearing against his religion and family. ‘Your father will only understand when I cut up your brother and throw him away. Only then will you understand and will you convert.’ The oldest son said that he is afraid to even talk about these people. He said that they avoid discussing Muslims and extremists in general. He said that no one in the shopping centre came to help. He believes that because they had guns that everyone was afraid. He said that the threats were focused on all of them, but they were making vulgar threats about the two girls specifically although they did not try to take them. After they returned to their home, he realised that his siblings were also hurt. After this he didn’t feel comfortable leaving home for any reason.

9. The second incident was around February 2015. It was submitted that the children were on their way to school when six unknown men surrounded their car. The men forced the door open and pulled the oldest son out of the car by his collar. They then pushed him against the car door and slapped him across the face two or three times. Several of them pulled out guns and one of them put a gun against the oldest son’s stomach. They told him that this is the final warning against the family. If they do not convert, they will be killed. After threatening the children, the men got back onto their motorcycles and rode away. The oldest son claimed that the attacker said to him, ‘you are [the first named applicant]’s son, I recognise you.’ Another man was claimed to have been pointing a gun at him and his siblings. He said that he just begged to forgive him and not to harm his siblings. The children said that the attackers would say, ‘I don’t want any apologies. I will convert you to a Muslim.’ The oldest son said that they did not feel safe at their home and that he had nightmares about people getting into their house.

10. The family’s driver provided an affidavit in support of the claims. Specifically, he wrote:

    I am a witness to the incidents occurred in 2014 and 2015 to the kids [Child C], [the third named applicant], [the fourth named applicant] and [the fifth named applicant]. In both incidents I was driving their car. I have felt how helpless these kids were infront of the men who were attacking them and torturing them. Although as a Muslim I believe that Hindus should convert to Islam, it’s for their own good, but no one should go through what they have been through for being Hindus.

    Kidnapping and harm to extended family

11. In written submissions evidence was given regarding incidents affecting their extended family:

    ·The wife’s brother was claimed to have been kidnapped in early 2011 and forcibly converted to Islam. I considered and remitted for reconsideration the asylum claims of the wife’s brother in a separate application (1828741). The Department had rejected the application of the wife’s brother despite earlier granting protection to his brother and sister on the same grounds of persecution against Hindus.

    ·In 2010, the cousin of the second named applicant, [Dr A], his wife, and five of their six children were claimed to have been forcibly converted to Islam. They claim that they had not heard from the family since.

    ·In December 2016 a sister of the husband and her family went missing, and his brother and mother subsequently went into hiding. The husband wrote in the application form “For approximately the first year that I spent in Australia, I would communicate with my mother…my brother…my sister…and her husband…every 15–20 days by telephone. On 15 December 2016 I received a telephone call from [my brother] informing me that my sister, her husband and two children had gone missing. Since this date my brother and my mother have gone into hiding and have not contacted me.”

12. I asked why they would be uncontactable. The husband responded that once converted, they don’t allow them to communicate, until properly converted. As for them making the effort, he added that they were fearful to be in touch as they thought that they would then be in the line of sight for conversion. He said that [Dr A]’s daughters tried to convert others into Islam.

13. Regarding his mother and brother going into hiding, the family lives in [District 1], a small district in Pakistan. When they need to hide, he said, they go to a remote place in a small house and live there temporarily. In remote rural districts the communication is not very good and there is no mobile signal and for that reason he wrote that he hadn’t heard from them.

    Situation of Hindus in Pakistan

14. Among the applicants are two single women. Throughout the hearing and in submissions concern was raised about the risk to them of kidnapping and conversion for the purpose of marriage. In addition, the claims rest upon the extent of discrimination within Pakistani society. As such 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 applicants, would live were they to return to Pakistan. For a variety of reasons, the country information is often contradictory on some of these issues. There are credible sources which refer to no forcible conversions and minimal discrimination and there are credible sources that speak of a pervasiveness of forcible conversions and severely harmful discriminatory treatment. Specific country reports by nations receiving asylum seekers, including reports produced by Australia’s Department of Foreign Affairs and Trade (DFAT), do not provide the necessary depth on the circumstances faced by returnees with the specific profile of the applicants. 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

15. 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 scheduled caste Hindus 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 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] Another study questioned the veracity of this report and its findings. This study is discussed further in the subsequent section.

    [4] ‘In Pakistan, the problem of forced conversions,’ The Hindu, 13 April 2019 >

    A report published by the University of Birmingham, Forced Conversions and Forced Marriages In Sindh, Pakistan,[5] published in 2018, strongly argued that abductions of Hindu girls are 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.

    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.

    [5] Forced Conversions and Forced Marriages In Sindh, Pakistan, University of Birmingham, 2018 >

    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 scheduled caste Hindus. The report acknowledged its methodological weaknesses but nevertheless built on the opportunity of in-depth discussions on key issues facing scheduled caste Hindus. Discrimination based upon religious identity ranked as the highest threat identified by females in the focus groups.

    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’.

    [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 >

    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.

16. 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.’[7] That the Islamic Council is quoted as acknowledging that there are instances of forced conversion lends considerable weight to this evidence.

    [7] ‘Pakistan’s top Islamic body approves construction of Hindu temple,’ 29 October 2020 >

    DFAT reinforces this view in its Pakistan country report:

    Local and international observers report that kidnapping, ransom and forced conversion of Hindu girls in lower Sindh is common, particularly in poorer communities lacking education and an understanding of religious rights. Kidnapped girls are often married and forcibly converted to Islam, after which their husbands’ families and communities prevent them from reverting to Hinduism. Reverting to Hinduism can also lead to accusations of blasphemy.

17. As for the motivation Prof. A.J. Paul has explained that, ‘abductors are aware that they can always justify this criminal behaviour against the marginalised Hindu and Christian girls and women, in the eyes of not only the ordinary public but also members of police and judiciary, on the grounds of bringing a non-believer into the fold of Islam.’[8] This view is supported by the United States Commission on International Religious Freedom who write:

    The issue of abduction, forced conversion to Islam, rape, and forced marriage remained an imminent threat for religious minority women and children, particularly from the Hindu and Christian faiths…The government did little to ensure minor girls’ safety and return to their families. Authorities often do not take any action, and in abduction cases that are brought to the courts, officials have claimed that victims willingly converted to Islam…Pakistani courts systematically failed to protect and provide justice to victims, who are often forced to testify that they converted voluntarily to protect themselves and their families from further harm.[9]

    [8] All-Party Parliamentary Group for the Pakistani Minorities, ‘Abductions, Forced Conversions, and Forced Marriages of Religious Minority Women and Girls in Pakistan,’ November 2021 United States Commission on International Religious Freedom, ‘Pakistan Chapter’, 2020

Another study explained, ‘It is a very common understanding among the Muslim community that converting people to their religion is a noble act and they will be rewarded with paradise in return. Moreover, by converting people, they are saving their souls from hell.’[10]

[10] All-Party Parliamentary Group for the Pakistani Minorities, ‘Abductions, Forced Conversions, and Forced Marriages of Religious Minority Women and Girls in Pakistan,’ November 2021

An undated letter was submitted by the applicants in November 2021 from the Pakistan Hindu Council. The Council wrote:

This is to certify that abduction and forced conversion of Hindu boys, girls and families is common practice in Pakistan. Due to these conversions, Hindus are living in fear and great number of Hindu families have fled from Pakistan to other countries for seeking protection. The abduction and forced conversions cases of girls reported in media whereas abduction and forced conversions of boys and families remain unreported. Whether report or unreported, the outcome is the same. The lives of minorities especially Hindus are at great risk following the ethnic and religious atrocities in Pakistan.

I note that other country information was provided by the representative which I have reviewed and considered carefully, but have not included explicitly in the written reasons for this decision.

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.[11]

[11] ‘No “evidence” of forced conversion to Islam in Pakistan: Study’, 18 October 2021 type="1">

Noting the competing narratives, Doctoral Fellow from 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’.[12] 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.’

[12] 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 and focused on forced conversions as the reason of any conversion, when in reality, the author argues, there are many reasons for each individual conversion. 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 as the author claims. 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 scholar 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.’[13] 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”.’[14]

[13] ‘No “evidence” of forced conversion to Islam in Pakistan: Study’, 18 October 2021 >

In the Institute of Policy Studies report 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.

The report notes that the much publicised figure of 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 abovementioned scholar published another academic paper in 2021[15] which consolidated evidence from previous field work. 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.

[15] 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 being 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.

A website that has been prominent in presenting information about harm against Hindus in Pakistan, OpIndia, was referenced by the representative in submissions for this case as providing credible instances and evidence of forced conversion. But in researching the background of this website I found it has been identified as having serious question marks 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 much 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]

Finding on forced conversions

[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 >

In response to a discussion of the country information at the hearing the first named applicant said that what is being reported is half of the truth. He claimed that all of the conversions are forcefully done. He said that they mentally torture people to such an extent that the head of the family converts willingly afterwards. The strategy is to mentally pressure Hindus to avoid overt force, which leads to penalties. The wife said that some willingly convert, but they are only a small percentage, because they are poor and when they are shown money, they willingly convert. She estimated this cohort to be very low, not even 1%. The husband added that he was offered money to convert. The oldest son said that there are different ways to convert Hindus to Islam. They kidnap the girls and then marry them off, he claimed. For the men they use blasphemy laws to blackmail them. According to him, it is to break Hindus down so that they choose to convert. They embed fear, he said. The second named applicant said that there are only a few reporters that try to report the situation.

The country information presented above is in some instances contradictory. Yet, the research supporting both perspectives has contributions that are robust and the reporting of both sides includes reputable sources. Overall, the common ground appears to be that there is a large flow of voluntary conversions. The reasons that drive these conversions 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. This is accepted but not relevant to the case. The difference between the various reports centres on the extent to which there are forced conversions. In considering the weight of evidence and in particular noting the questions that persist in the research of Doctoral Fellow Ghulam Hussain I find that the figure of forced conversions is not nearly as high as has been claimed by some NGOs but nor am I convinced that it does not exist. I find that there are instances of forced conversion, for reasons that even groups in whose interest it would be to cover up such findings admit that it exists including Pakistan’s Islamic Council and the government. For this reason I find that their claims of extended family members being kidnapped and forcibly converted are factual.

In considering the reasonably foreseeable future and what lies ahead for the applicants during this period I find that they face a remote chance and a remote risk of being victims of kidnapping and forcible conversion. While sometime in the past other family members have been targeted and as was explained this has led to a domino effect where the kidnappers seek out relatives or the relatives actively attempt to convert them, I find that such a chain has been broken through the passage of time. Furthermore, I find that the applicants will not be returning to their middle-class house in Karachi where they lived separately from other Hindus as they have sold their home and have limited job prospects that would allow them to repurchase it. Instead, they will be one of many Hindus living among other Hindus in predominantly Hindu quarters of Karachi. For the reason that they will mingle into the masses of Hindus I find that they face a remote chance of serious harm and a remote risk of significant harm arising from being kidnapped and coerced into conversion.

Relevant country information pertaining to discrimination

The Human Rights Commission of Pakistan wrote a report, Minorities under attack: Faith-based discrimination and violence in Pakistan,[20] 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.

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.

[20] Minorities under attack: Faith-based discrimination and violence in Pakistan, Human Rights Commission of Pakistan, >

I note considerable country information highlights the risks to minorities that Pakistan’s blasphemy laws present. The key concern is that the blasphemy laws have been weaponised for use in disputes that extend beyond religion. One example of such reporting is from Freedom House:

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.[21]

[21] ‘Freedom in the World 2021: Pakistan’, Freedom House ttps://freedomhouse.org/country/pakistan/freedom-world/2021

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.[22]

I give this assessment considerable weight due to the credibility of the organisation, Minority Rights.

[22] Minority Rights Report: Pakistan >

Conversely, 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.[23] This political win for Hindus is a positive reflection but as noted by the applicants when this was discussed with them, the elected politicians are of a high caste and as such it is not reflective of the situation for scheduled castes.

[23] ‘Pakistan election: Muslim-majority areas elect 3 Hindu candidates in Sindh,’ 31 July 2018,

The South Asia Terrorism portal records the extent of violent acts against Hindus. Between 2009 and 2021 a relatively low total of 23 incidents were recorded and the majority relate to blasphemy charges.

Other relevant country information includes:

a.‘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.’[24]

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.’[25]

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.’[26]

d.Pakistan’s Hindus are ‘affected by prevailing community attitudes to India and the state of the bilateral relationship’[27] which also includes risks of being victims of retaliatory violence arising from Hindu violence against Muslim minorities in India.[28]

Findings on discrimination

[24] EASO, ‘Country of Information Report – Pakistan Security Situation’ (October 2020) p. 58

[25] 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 DFAT 2022 [3.50]

[28] Maria Abi-Habib, ‘Hard Times Have Pakistani Hindus Looking to India, Where Some Find Only Disappointment,’ New York Times, 5 October 2019

1. That the country information is nearly uniform in its description of discrimination as being entrenched and extending from community and societal to institutional and governmental, I find that such discrimination can amount to serious harm in some cases depending upon the individual applicant’s circumstances.

2. For example, in a 2019 report DFAT specifically notes that Hindus living in self-contained communities are better placed to be protected from societal discrimination than poorer castes. Specifically, it notes that ‘Hindus in Karachi are safer in wealthier areas such as Defence and Clifton, but poorer Hindus are unable to live in these areas.’[29] While this DFAT report has been superseded and the same reference has been included in the latest report I accept that the conditions that informed the 2019 report remain.

   [29] DFAT 2019 [3.149]

3. I note that the applicants lived in [a wealthier area]. While the representative inferred in submissions that the mitigation of risk arising from living in such areas accrued due to being wealthy and higher caste and not simply a resident, this is not what is expressed in the DFAT report. Nevertheless, the question is not to consider where the applicants lived but rather where they would return to in Karachi if they are found not to meet Australia’s protection obligations. The father does not have any work. They have sold their assets establishing their lives in Australia. The children are not qualified or registered to work in professions in Pakistan. The family would have to temporarily live with relatives or rent in a much more affordable area of Karachi. As such the caveats of living in [wealthier areas, as] expressed in the DFAT report do not apply when considering the reasonably foreseeable future.

4. I also find that in general lower caste Hindus have fewer community protections than upper caste Hindus regardless of wealth due to the inherently hierarchical and discriminatory caste structure.

5. I also note that despite finding that the applicants do not face a real chance or a real risk of abduction and forced conversion the existence of this practice and importantly the impunity that country information suggests accompanies any such act is of concern and relevant to considerations of the extent of discrimination that the applicants face. That it is a ‘common understanding among the Muslim community’[30] that converting minorities is admirable and spiritually beneficial and that the judiciary and police turn a blind eye, as noted in country information referenced above, is indicative of a broader societal disdain towards minorities. DFAT notes that, ‘In October 2021, a proposed bill that would have outlawed forced conversions was rejected by a parliamentary committee tasked with considering the issue after the Minister for Religious Affairs told the committee “the environment is unfavourable” for passing the law.’[31]

   [30] All-Party Parliamentary Group for the Pakistani Minorities, ‘Abductions, Forced Conversions, and Forced Marriages of Religious Minority Women and Girls in Pakistan,’ November 2021

   [31] DFAT 2022 at [3.38]

6. This anti-religious-minority attitude by authorities has been detailed by the applicants in their evidence and is supported by other independent country information including, for example, education policy which identifies, ‘The citizenship of Pakistan is exclusively constructed in the context of Muslim Ummah.’[32] The author of one such report notes, ‘It seemed that policymakers had vigilantly ousted minorities from the ambit of Pakistani citizenship. This policy paper [Pakistan government education working paper] had promoted narrative that Pakistan only belong to Muslims wherein minorities had no stake in Pakistani society.’[33]

   [32] Shafiq Qurban, Husnul Amin, ‘Education Policies, Discourse of Ideology and the Construction of National Identity in Pakistan: A Critical Analysis,’ in Global Regional Review, Vol IV, No III, 2019

   [33] ibid

7. The harm from discrimination the applicants face as both members of a scheduled caste and Hindus living in Karachi doesn’t arise from a fear of a single incident that would meet the threshold of serious or significant harm but rather repeated, persistent and pervasive instances of discrimination and abuse. The idiom, ‘death by a thousand cuts’ would be apt in this situation. The harm they fear is cumulative, arising from being members of a scheduled caste and discriminated against by upper caste Hindus, being educated scheduled castes and being discriminated against by other scheduled castes, being discriminated against by society and the government for being minorities and facing particular discrimination for being of a Hindu minority arising from the historical and ongoing geopolitical tensions with India. DFAT concludes that, ‘Lower-caste Hindus face a moderate risk of official discrimination (in the form of employment discrimination) and societal discrimination.’[34] While each instance of harm arising from such discrimination would not amount to serious or significant harm, collectively and repeatedly, particularly for the younger women, alongside the remote risk of abduction, I find, would be such that the circumstances facing the family upon return to Pakistan does amount to a real chance of serious harm.

   [34] DFAT 2022 at [3.54]

8. I find that the harm the family faces is systematic and discriminatory. The nature of the existence of castes within Hindu society in Pakistan is deeply ingrained and pervasive. The discrimination by other members of the Hindu community the applicants face as a result of being of the lowest caste is systematic. As is the deeply entrenched distrust that arises from the history between India and Pakistan. The discrimination from Muslims in the community and the government arising from being Hindu I find is also systematic. It is systematic as there is a clear intent to transform Pakistani society into an exclusively Muslim one. While the constitution clearly allows for a pluralistic society, assessments by observers see an increase in anti-non-Muslim sentiment in Pakistani society. DFAT notes in its latest report, ‘A wide range of local and international commentators reported growing religious intolerance in 2018. Political leaders are reluctant to speak against religious discrimination, and those who have spoken have faced violence.’[35] The United States Commission on International Religious Freedom noted for 2020:

   [R]eligious freedom conditions in Pakistan continued to worsen. The government systematically enforced blasphemy and anti-Ahmadiyya laws and failed to protect religious minorities from abuses by nonstate actors. There was a sharp rise in targeted killings, blasphemy cases, forced conversions, and hate speech targeting religious minorities including Ahmadis, Shi’a Muslims, Hindus, Christians, and Sikhs.

   …

   Pakistan’s religiously discriminatory legislation, such as the blasphemy and anti-Ahmadiyya laws, used in combination with new media rules, contributed to egregious human rights abuses and fostered an overall atmosphere of intolerance for religious minorities that often leads to violence and discrimination.

   [35] DFAT [3.77]

9. As noted above, three Hindus won seats in the general election separate to those filling specific minority spaces on lists. This would argue against the above conclusion that religious discrimination is growing. But as the applicants argued, the three were elected based upon a Hindu population in Sindh which could alternatively suggest that there is a fracturing of the vote along religious lines and the Hindus are voting for lists with Hindus and the Muslims for Muslims. In and of itself, that there are Hindus being elected to parliament is not sufficient to suggest that the situation between religions is improving.

10. I find that the applicants cannot be expected to modify their behaviour such that they would no longer be a target of those who would seek to discriminate against them. The discrimination is for reasons of their faith and for being scheduled caste within that faith. Changing their faith to avoid harm by presenting as Muslim would breach s 5J(3)(a), as it would conflict with a characteristic that is fundamental to their identity or conscience, namely their Hindu faith.

    Whether the real chance of serious harm relates to all areas of the receiving country

11. In considering whether the real chance of serious harm the applicants face relates to all areas of the receiving country (s 5J(1)(c)) I noted to the applicants country information that suggests that there are areas with significant Hindu populations, particularly Umerkot and Tharparkar districts where Hindus comprise approximately half of the population. The applicants said that they would continue to face discrimination by the upper caste Hindus and Muslims even were they to relocate.

12. The first named applicant said that there are Hindus in those districts but the conditions for scheduled castes are not good. He said that he lived in one of those areas and found few job opportunities. He said that they hear of incidents of conversion, including his own sister who was taken from Khairpur district in Sindh province. He said that they had relocated to Karachi as they had no future in those districts. The applicants have argued that they would be unable to subsist due to their caste in Hindu dominant communities.

13. Following the hearing a submission was received from the representative outlining the reasons why the applicants would be unable to ‘safely relocate’. Despite the statutory test being different to the question of relocation, the evidence submitted by the representative nevertheless remains relevant. The reasoning included, ongoing targeting of Hindus, particularly lower caste Hindus by Islamist extremists and Muslim clerics, an inability to subsist and forced conversions.

14. I note that earlier I had found that the applicants face a real chance of serious harm arising from cumulative discrimination for reasons of being members of a scheduled caste and discriminated against by upper caste Hindus, being educated scheduled castes and being discriminated against by other scheduled castes, being discriminated against by society and the government for being minorities and facing particular discrimination for being of a Hindu minority arising from the historical and ongoing tensions with India and the risk of forcible conversions. This consideration was based upon the applicants’ experiences and country information on the situation of Hindus in a Muslim majority Pakistan.

15. In considering whether the applicants face a real chance of serious harm in the context of s 5J(1)(c) in all areas of Pakistan I considered country information on the situation in Umerkot district. This district is approximately equally divided between Muslims and Hindus with Muslims comprising 52% of the population. In such a situation the level of risk arising from discrimination by a Muslim dominated society reduces but is not eliminated. While the applicants claimed, and I accept, that discrimination continues to occur in places such as Umerkot and that forced conversions occur I find that when considered individually and cumulatively because of the larger Hindu population the risk each of the applicants faces amounts to less than a real chance of serious harm and less than a real risk of significant harm. For this reason, the applicants do not have a well-founded fear of persecution as the real chance of persecution must relate to all areas of a receiving country (s 5J(1)(c)).

100.   But it has been held by the Full Federal Court in FCS17 v MHA that the concept of all areas of a receiving country only carries the meaning of all areas ‘where there is safe human habitation and to which safe access is lawfully possible’.[36] As such I now turn my mind to consider the safety, habitability and lawful access for the applicants to Umerkot.

[36] FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ at [81]

101.   Regarding the concept of safety, this was not defined in FCS17 in which Justices White and Colvin noted at [34]:

Even if it afforded the same access to housing, food and work as was available in a person’s home area, it may not be a viable or realistic alternative because it posed other threats and dangers much worse than the threat of persecution for Convention reasons (even though it offered freedom from such persecution). One can contemplate unsafe places such as war zones or anarchic places where the risk of harm is not due to any particular persecution of an individual.

102.   At [77] this description of what could possibly constitute unsafe was expanded:

The place may be so war ravaged that civilians are in daily peril…They may be in a category of people exposed to random violence by criminal gangs or sustained physical abuse.

103.   There is no analysis that suggests that Umerkot as a district or its surrounding geographic region will, into the reasonably foreseeable future, see war or anarchy.[37] While crime is present, as it is in any other location in Pakistan or other human settlements around the world, there is no evidence to suggest that it is disproportionate to other regions in Pakistan. For these reasons I find that Umerkot is not unsafe.[38]

[37] Review of Google and CISNET

[38] ibid

104.   Regarding its habitability according to a comprehensive report by USAID[39] in 2014 Umerkot is a district with a population of 1,084,451 as of 2013. Of fixed housing units 39% have electricity and 12% have piped water. Further:

[39] Pakistan Emergency Situational Analysis: A profile of District Umerkot, USAID, June 2014 Umerkot is a historically important administrative unit that plays an important role in the economy and trade of eastern Sindh. Formerly known as Amarkot, it was the capital of Greater Sindh Province, including some parts of present day’s Rajasthan state of India.

…

Since district Umerkot is an agro-based rural district where 83% of the population reside in the rural areas, the sources of livelihood are less diversified for the resident population. While agriculture is the main source of employment for the rural population, in the urban areas of the district people are engaged in various other economic activities like trade, services, personal business, and government and private jobs. Umerkot city is the main trading centers of this district.

…

In the category of some, services sector, personal business and casual labor are the main sources of livelihood for the female population.

…

However, combining both, the overall crop based and animal based food production, district Umerkot is extremely deficit in food production. But, trade and economic activities of this district ensure the availability of food through imports from neighboring districts.

…

According to Food Security Analysis (FSA) 2009, access to improved drinking water is very poor in this district… Sanitation conditions in district Umerkot are also poor where 37% of the households use flushes toilets and 30% of the households have non-flush toilets.

…

The present infrastructure of healthcare in the district is not sufficient for the entire district…These public health facilities can cater the need of only 30% of the estimated population-2013. The number of health care staff in the district facilities is extremely low and gives a ratio of 0.01 doctors for 1,000 people and 0.001 female paramedics for 1,000 women.

105.   In FCS17 v MHA at [80], Justices White and Colvin concluded that, ‘It is implicit from the subject-matter of the provision that areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country.’ In the same case Chief Justice Allsop noted the absurdity and unreasonableness of interpreting the words ‘all areas’ to include geographical areas such as the middle of a scorching and inhospitable desert or upon a frozen mountain top (at [18]).

106.   Based upon the USAID report on Umerkot, I find that it is not a place that is uninhabitable or so inhospitable that the applicants would face an inability to find food, shelter or work and therefore I find that Umerkot is not excluded from the receiving country.

107.   There is no information to suggest that Pakistani citizens would not have lawful access to Umerkot.[40] As such I find that the applicants have lawful access.

[40] Review of Google and CISNET

108.   For the reasons given above I find that the applicants do not trigger Australia’s protection obligations on the basis of s 36(2)(a).

Complementary protection and the relocation test

109. While s 5J(1)(c) engages with the question of whether the real chance of serious harm relates to all areas of a country, for which I have found that it does not and as such Australia does not have protection obligations under that section of the Act, I have also found that the applicants face a real risk of significant harm under s 36(2)(aa), the complementary protection test. The harm they face, I found to arise from the treatment they would receive for being members of a scheduled caste and discriminated against by upper caste Hindus, being educated scheduled castes and being discriminated against by other scheduled castes, being discriminated against by society and the government for being minorities and facing particular discrimination for being of a Hindu minority arising from the historical and ongoing geopolitical tensions with India. The harm they face from each of these is ‘degrading treatment’ as per s 36(2A)(e).

110.   Section 36(2B)(a) imposes a different approach for considering the ability of applicants to find alternate areas within the receiving country. Specifically, the test is whether, ‘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.’

111.   Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.

112.   Relevant factors in considering reasonableness may include age and life experience, sex, health, disability, family responsibilities and relationships, social or other vulnerabilities, financial difficulties or other problems in travelling to or residing in the new place, ethnic, cultural or religious considerations, political and social links and compatibility, language abilities, civil status, skills, educational, professional and work background and opportunities, available or realisable assets, previous stay or employment in the proposed region, any past persecution and its psychological effects.[41]

[41] UNHCR, Guidelines on international protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04 23 July 2003 at [25]

113.   In MZACX v MIBP [2016] FCA 1212 at [35] Justice Kenny noted that in considering whether it is reasonable in the sense of practical the Tribunal may find it relevant to include consideration of ‘lower risks of harm faced by the applicant.’ In MZZJY [2014] FCA 1394 Davies J held, ‘The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate.’

114.   I previously accepted that the applicants face a risk of harm arising from a broad array of potential persecutors including upper caste Hindus discriminating against scheduled caste Hindus, Muslims seeking to convert Hindus and the government concerned about national security. This harm, though, individually and cumulatively amounted to less than a real risk of significant harm. But in considering the reasonableness of relocation for the applicants the test is different and as noted by Justice Kenny, includes lower risks of harm. The harm the applicants face in the form of discrimination and physical harm is pervasive, deeply ingrained in society and cannot be avoided. Relocation would require them to move to an environment where they do not have familial support which could provide some degree of mitigation against discrimination or protection from physical harm. When considered against the test of whether it would be reasonable for the applicants to relocate, I note that in addition to the earlier outlined discrimination and physical harm they face, the daughters are single. One is [age] and the other [age] years old. The consideration of reasonableness for their relocation would be of particular concern due to the targeting of young women for forced conversion and subsequent marriage specifically in Umerkot which was prominent in the country information submitted by the representative. The youngest son, in addition to the discrimination and physical harm he would face, would struggle to find employment as had his father who had for the same reasons migrated to Karachi. For these reasons, I find that relocation is not reasonable for each of the applicants and as such the exception under s 36(2B)(a) is not applicable.

115. For this reason, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(aa).

DECISION

116. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(aa) 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 of 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 of persecution would not exist if it were assumed that the fear of 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.

…