1829933 (Refugee)

1829933 (Refugee) [2022] AATA 2978 (6 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1829933
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Damian Creedon
DATE:6 July 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 6 July 2022 at 3:02pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Christian convert – Muslim apostate – particular social group – Christian converts from Islam – fear of harm by family members, community and extremist groups – acute political instability – recovery from marriage breakdown – period of substance abuse and homelessness – consistent and plausible account of circumstances which led applicant to convert – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a [age]-year-old citizen of Pakistan, first arrived onshore [in] January 2010 holding a Student (TU572) visa. The applicant was granted further temporary visas between 2011 and 2017, including a [visa] which was cancelled on character grounds on 17 May 2017.
The applicant applied for a protection visa on 20 September 2017.
Protection visa application
In his protection visa application and evidentiary materials, the applicant claims to fear returning to Pakistan as a Muslim apostate and convert to Christianity.
The background to the applicant’s claims for protection are summarised in the delegate’s decision record in the following terms:
·The applicant was born into a Sunni Muslim family in Rawa!pindi, Pakistan. In 2015 he became interested in Christianity however never formally converted to Christianity. He currently does not follow any religion because he does not have adequate time to devote himself to a religion.
·Around 2007 during the election campaign the applicant was in [a park] in Pakistan and watching the election with friends when he was shot by an unknown person/s. The applicant was shot in the leg and does not know who was behind the shooting and whether he was specifically targeted.
·In addition to the incident at [the park]. the applicant was shot twice on one occasion in Sialkot as a victim during an armed robbery after attending a wedding. The applicant estimates this incident occurred around 2002 or 2003.
·In March 2013 the applicant married his wife in Australia at a mosque in [Perth], Australia. His wife is from New Zealand and decided to convert to Islam because the applicant had been brought up in a Muslim family. The applicant subsequently had a son and daughter with his wife in Perth.
·The applicant decided to change from Sunni Muslim to Shia Muslim in 2012 because he felt some of the traditions and customs were a little better and that there was more of an emphasis on respect. The applicant began to attend a Shia mosque a few times. His family in Pakistan were fine with his change of religion initially however after he had been in Australia for some time, they began to have arguments with each other about his decision.
·In 2015 the applicant began to read and learn a bit about Christianity but he did not convert. When the applicant first arrived in Perth, Australia, he was only practising Islam a little bit and attended mosque approximately once a week. After having a few arguments about religion and politics with friends in Perth he decided to distance himself from religion altogether. He began to drink, which was never allowed growing up in the Muslim faith, which was a totally different experience for him and he had more freedom.
·The applicant has attended a Christian church a few times both in Perth and also in New Zealand. He attended a Christian church with his wife in [New Zealand]. His wife's father also took him to the church. The applicant was just looking and observing how Christianity worked at that time. He never converted to Christianity. He does not know why his wife decided to convert to Islam after her upbringing in the Christian faith.
·[In] February 2017 the applicant was charged with a Breach of Police Order: Restraining Orders Act 1997; 61(2). The restraining order that he breached had been issued in relation to his wife with whom he has since separated. Around that time he had been going through difficulties with some friends and also his religious beliefs. He was a bit angry and decided to burn approximately 10 religious books in his backyard. This included the Quran which he and his wife shared together, and other books written by scholars of the different sects of the Muslim faith.
·The applicant's wife became angry because he was burning things and this was scaring the children. She thought that he was going to endanger his life as well as the lives of others. The applicant's wife decided to contact the police. The applicant left the house and the police came afterwards. The applicant believes that it was at this point that his wife obtained a restraining order against him. The applicant was subsequently arrested the next day when he went to collect his car from the family home, despite telling the police he was going to go and do so. This was the last time he saw his wife and children who have since relocated to New Zealand. The applicant was found not guilty [in] August 2017 in relation to breaching the restraining order. Based on this court result the applicant believes his visa should not have been cancelled by the Department.
·The applicant fears returning to Pakistan due to his lack of religious beliefs.
·Former friends in Australia know that he burnt some religious books. His wife told some of them and then other people found out through word of mouth. He believes that if he returns to Pakistan he may be attacked or killed. If anyone in Pakistan found out he had burned the Quran and other religious books he would be killed instantly.
·In summary. the applicant fears harm including physical assault, torture and death at the hands of the Pakistan authorities and religious groups in Pakistan. The applicant cannot rely on State protection and cannot reasonably relocate anywhere else in Pakistan.
The claims as summarised are based in part upon a statutory declaration made by the applicant on 29 November 2017. Other material aspects of the applicant’s statutory declaration may be summarised as follows:
a.The applicant came to Australia as a student to improve his education and English. His grandparents paid for and arranged his Student visa.
b.Although he arrived in Australia intending to study in business field, the applicant changed his pathway once onshore to [Occupation 1].
c.The applicant met his wife, a New Zealand citizen, through Facebook in 2012. The couple began a long-distance relationship and were married in March 2013 at a Mosque in [WA] and at the Registry Office in Perth. The applicant’s son was born on [date] and his daughter was born on [date].
d.The applicant states:
My relationship with my wife was good until earlier this year [2017] when we decided to separate.
e.The applicant ascribes the deterioration in the couple’s relationship to “back-to-back” pregnancies”, the death of his wife’s father and the ending of his job at [Employer 1]; the applicant states (uncorrected, excluding paragraph numbers):
[In] February 2017 I was charged with a Breach of Police Order: Restraining Orders Act 1997; 61(2). This restraining order that I had breached had been issued in relation to my wife who the Tribunal is now separated from.
The background of this charge is that around this time I had been going through some difficulties with some of my friends and also my religious beliefs. I was a bit angry and decided to burn some religious books that I had in my backyard. His included the Quran which my wife and I shared together, and books made by scholars of the different sects of the Muslim faith.
I think I burned around 10 books – all of which were to do with religion.
My wife got angry because I was burning things and that the kids were home, she didn’t want me to scare them. She thought the fire might have gotten out of control. She thought I was going to endanger my life as well as their lives.
I think she may have also thought that I was going to commit suicide or that I had mental problems or may have been using drugs.
My wife decided to contact the police.
I left the house and the police came afterwards. I do not know what the police did when they were there.
I believe this is the point at which my wife obtained a restraining order against me.
The applicant attended an interview with the delegate on 12 September 2018. Where relevant the applicant’s interview will be referred to below.
The delegate refused to grant the visa on 12 October 2018 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review.
Material before the Tribunal
The Tribunal has before it a range of material, including, relevantly:
a.A copy of the biodata entry from applicant’s Pakistan Passport provided to the department;
b.The applicant’s protection visa application forms signed on 19 September 2017;
c.The delegate’s protection visa decision record dated 25 September 2018, a copy of which the applicant provided to the Tribunal (delegate’s decision record); and
d.The review application form lodged with the Tribunal on 12 October 2018.
The Tribunal has also had regard to:
a.the Department of Foreign Affairs and Trade (DFAT) “DFAT Country Information Report Pakistan”, 25 January 2022 (DFAT Report); and
b.the UK Home Office (UKHO) “Country Policy and Information” report on Christians and Christian converts in Pakistan, 21 June 2022 (UKHO Report).
In support of his application the applicant provided a number of pieces of documentary and digital evidence, including the following:
a.An undated letter from [Mr A] emailed to the Tribunal; the letter states (materially, uncorrected):
My name is [Mr A] and I am a permanent resident of Australia and have been working with [the applicant] for the past 3 years. I had the honour of supervising [the applicant], whist working for [an employer]. During this time [the applicant] displayed an excellent work ethic, he is a team player and always willing to assist his co-workers with any duties required. He is punctual and is reliable for any overtime work. [The applicant] developed sound relationships with his co-workers has genuine concern with their wellbeing and safety. I have noticed that [the applicant] communication skills in the workplace have improved to a level that I felt confident for him to liaise with stakeholders whist at work. This has included written and verbal conversations with professionals. [The applicant] continues to exceed expectations in the workplace and is a highly valued employee.
Whist working with [the applicant] I have witness his good-natured personality. Taking the time during his lunch breaks to speak to those on the streets that are struggling and possibly homeless. He has provided lunch and an ear to listen, offering information about community support services eg local church. Additionally, I’ve also had the opportunity to develop a personal relationship with [the applicant]. He has proven to be a good friend and role model to my young son. In his time in Australia [the applicant] has develop a good support network and has integrated in the community.
the Tribunal is confident that [the applicant] is the type of citizen that will thrive in opportunities that are offered in Australia. These experiences, which are not available in his home country, will greatly enhance his quality of live as well as allow him to further his talents. Not only does his have an aptitude at what he does, but he also is an engaged member of the community who volunteers his time to helping the disadvantaged and homeless. I sincerely believe that he will be a wonderful addition to the community and the country
b.An email dated 2 January 2019 from [Dr B], Pastor of “[Church 1] Perth” attaching photographs and audio-visual footage of the applicant’s baptism in Perth’s Swan River; the email states (materially, uncorrected):
We met [the applicant] during our homeless outreach under Perth [Church 2].
He is serious of returning to workforce as a [Occupation 1 worker].
We baptised him [in] Dec 2018.
To my best knowledge, he shows good character with genuine intention.
c.A letter dated 25 March 2019 from [Ms C]; the letter states (materially, uncorrected):
My name is [Ms C] and I offer my recommendation of [the applicant] to whom I have personally known for 2 months, we met at [Employer 1], as I noticed his friend reading a bible and they were both searching regarding biblical truths. I invited [the applicant] to church and he has been attending consistently, ever since. Throughout this time, I have experienced an individual who shows up earlier than most, and keen to help out. He has been very open and honest about his situation and wanting to better himself. He carries himself in a very polite and respectable manner….
[The applicant] is growing in Christian faith….
Hearing
The applicant appeared before the Tribunal 29 June 2021 to give evidence and present arguments. The Tribunal discussed with the applicant his personal history to early 2017. In brief, after completing his high schooling in Pakistan the applicant decided to study as an international student in Australia. He stated that he pursued business studies onshore before changing his study pathway to [Occupation 1].
The applicant stated that during this period his life changed considerably: he met and married his wife, a New Zealand citizen, who became resident in Australia, and the couple had two children. The applicant stated to the effect that his response to the pressures of life during this period was to turn to alcohol and drugs. He stated that his mental and physical health deteriorated as did his relationship with his wife. He stated that eventually his wife left him, returning to New Zealand with the couple’s children.
Overall, the applicant’s oral evidence on these issues was sufficiently consistent with that provided to the delegate and sufficiently detailed when pressed for the Tribunal to be persuaded as to its general truth.
The Tribunal spent the majority of the hearing exploring the applicant’s claim to have converted to Christianity. The applicant stated that after the breakdown of his relationship with his wife he became homeless. When pressed as to the drivers of this situation the applicant stated to the effect that he suffered from substance abuse issues at this time and the emotional trauma of returning to the empty family home was too much for him to handle. When pressed as to why he did not return to his home country, the applicant stated that he “did not think of returning” as his mental health was “not good” as a result of drug use and he had no money.
When further pressed, the applicant stated that at first he slept in an “old Bunnings” in Cannington and then drifted through Victoria Park to Perth’s CBD. At one point he attended [an] Emergency Department as a result of hallucinations he was suffering, and he was sent to [Hospital] to assess his mental health. The applicant stated that these events occurred in 2016-17.
In respect of his conversion to Christianity, the applicant stated that this occurred slowly, over time. He stated that “some people” found him when he was “on the street”; he stated that he was “high and talking silly” at this time, experiencing hallucinations. When pressed, the applicant stated that people found him in “the park”, gave him food and prayed for him; he stated that gave him clothes and said that would return the next day; he stated that they told him where to go to obtain assistance and that that place was a Christian Church.
When pressed as to his reaction to this assistance, the applicant stated that at first his relationship with the people started with obtaining food, there was “no preaching”; after the first six months of going to the Church to get food, he was given “the gift of a Bible” and was invited to “have Bible studies”. He stated that at that time his mental health was “so bad” he had to be taught how to read the Bible. He stated that he got “happiness” from going to church; he stated:
God is helping me; God is helping me and loving me. Life is getting happy again.
When pressed as to the location of the Church he attended the applicant provided a detailed geographical description relative to [a Perth landmark]. The applicant stated that he was baptised a Christian in December 2018. When asked what his baptism meant to him, the applicant stated that God sacrificed himself for his (that is the applicant’s) sins and forgave him them. He stated that he prayed for work and obtained a suitable position. He stated:
I am very happy right now; God took [the] drugs away, [I want to] keep growing in Christ.
The applicant is currently employed by [a company] and is living in rented accommodation. He stated that he regularly attends Church services.
When pressed as to his fear about returning to Pakistan, the applicant stated that, although his relationship with his parents is “very good” and he felt they would forgive him for converting from Islam to Christianity, his was afraid of his extended family, his “uncles, aunts, cousins” who all live in the same house and who would not forgive him. When further pressed, the applicant stated that he was afraid that he would experience violence in Pakistan for having converted “if others found out” and would have to stay in a “home prison” to stay safe.
consideration of claims and evidence
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
The applicant claims to fear returning to Pakistan as a Muslim apostate and convert to Christianity. It is convenient to outline relevant country information before considering the applicant’s evidence.
The DFAT Report states that religious conversion from Islam (apostasy) while not illegal, is often seen as blasphemous and can result in prosecution under blasphemy laws, and/or familial or communal violence. According to DFAT, article 259A of the Penal Code prohibits insulting any religion (not just Islam) and carries a sentence of up to 10 years’ imprisonment, which may be accompanied by a fine.[1] The Tribunal notes that there have been numerous, documented incidents of communal violence carried out against Christians accused of blasphemy. The Tribunal notes that the Report states that the incidence of violent attacks motivated by blasphemy have escalated dramatically in recent years, with blasphemy cases hitting an all-time high in Pakistan in 2020. According to the Report ‘accused blasphemers are at risk of extrajudicial killing, before, during, and after being taken into custody’[2]. The DFAT Report[3] states:
Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies (such as the TLP).
Blasphemy and other offences relating to religion are criminalised in Pakistan under Articles 295 and 298 of the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. The punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by a fine.
Religious conversion from Islam (apostasy) while not illegal is often seen as blasphemous and can result in prosecution under blasphemy laws, or in familial or communal violence. Article 295A prohibits insulting any religion, not just Islam, and carries a sentence of up to 10 years’ imprisonment, which may also be accompanied by a fine.
The Centre for Social Justice (CSJ) reported 200 blasphemy cases in 2020, an all-time high which has been widely linked to rising religious intolerance. Of these 35 were sentenced to death. Religious minorities are disproportionately affected: in 70 per cent of the cases the accused was Shi’a, 20 per cent Ahmadi and 3.5 per cent Christian. False accusations of blasphemy are used to settle personal disputes, as in the case of Asia Bibi, a Christian woman sentenced to death for blasphemy in 2010 after a dispute with Muslim neighbours in which they refused to share water with her because she was a Christian. Bibi was acquitted and released from prison in 2018 and fled to Canada. People have been charged with blasphemy for online speech; for instance, three men were sentenced to death by an Islamabad court in 2021 for sharing ‘blasphemous’ material on social media. In July 2021, an eight-year-old boy was charged with blasphemy in Eastern Rawalpindi after allegedly urinating in a Madrassa library.
The conviction rate for blasphemy in the lower courts is high, and judges are often under enormous public pressure to deliver a guilty verdict. A Pakistani legal expert told DFAT most blasphemy convictions were overturned by the higher courts, but an accused blasphemer was likely to spend years in prison even if the accusation was eventually found to be baseless. Judges and defence lawyers are often reluctant to take on blasphemy cases due to the personal security risks involved, resulting in appeals being delayed until a new bench is constituted.
Accused blasphemers are at risk of extrajudicial killing, before, during, and after being taken into custody. In December 2021, a Sri Lankan man was beaten to death and his corpse set on fire after being accused of blasphemy due to removing posters from the wall of the factory in Sialkot, Rawalpindi, where he worked. During the murder his killers chanted slogans popularised by Tehreek-e-Labbaik Pakistan (TLP), an Islamic extremist group. Afterwards they posed for selfies with his corpse and shared video of his murder on social media. In August 2020 a US national on trial for blasphemy, Tahir Naseem, was gunned down in a Peshawar courtroom by a 15-year-old boy. Thousands rallied in the streets to support Naseem’s killer, and politicians visited the killer’s home and police posed for selfies with him. Extremist groups and individuals have targeted politicians, lawyers and judges who have spoken out against blasphemy laws. The former governor of Rawalpindi, Salman Taseer, was assassinated by one of his bodyguards for calling for reform of blasphemy laws. Large numbers of people protested when his assassin (whom they considered a hero) was executed in February 2016.
DFAT assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and high risk of societal and official discrimination in the form of popular denunciation, unfair trials and inadequate state protection. The risks are especially acute for members of religious minorities, including Shi’a, Ahmadis, Christians and Hindus.
[1] DFAT Country Information Report, Pakistan, 25 January 2022, section 3.33
[2] DFAT Country Information Report, Pakistan, 25 January 2022, section 3.36
[3] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.31–3.37
The Tribunal notes the following information from the DFAT Report about the treatment of Christians in Pakistan more generally[4]:
According to the 2017 census there are about 2 million Christians in Pakistan, although NGOs claim the actual figure is higher. Most are descendants of low-caste Hindus who converted during the British era. Most Christians live in Rawalpindi, with sizeable populations in Sindh, Islamabad and Khyber Pakhtunkhwa. Pakistani law does not restrict Christians from practising their religion and they are generally able to do so without government interference, although they sometimes face difficulties in establishing new churches.
Christians are among the most economically vulnerable groups in Pakistan. Many live in slums and are employed as ‘sweepers’ (sanitation workers), household servants or bonded labourers in brick kilns. Christians face significant societal discrimination from the Muslim majority. Job advertisements, including those for municipal and other government agencies, often specify sanitation work can only be done by Christians or other ‘non-Muslims’. Other forms of discrimination include refusal to touch or share facilities with ‘unclean’ Christians, the use of derogatory terms such as ‘infidel’ or Chura (‘dirty’), and denial of emergency relief. Christians are also disproportionately targeted by blasphemy accusations.
Christians are targeted by militant groups in Pakistan. Police provide security for major Christian churches during Christmas and Easter, reducing but not eliminating the risk of violence. Four members of a Christian family were killed by an IS gunman in Quetta in April 2018, while an IS bombing at a Christian church killed nine people in December 2017. Christians are also victims of community violence, often sparked by religious or personal disputes. In February 2021, a 22-year-old Christian man, Saleem Masih, was beaten to death for ‘polluting’ water by bathing in it. In November 2020, a woman and her son were shot dead by a Muslim neighbour who claimed they ‘defiled’ an Islamic shrine with wastewater.
Christian girls are targeted for forced and underage marriage and forced conversion, and are also targeted by people traffickers. In 2019 a report by Associated Press revealed at least 629 women, most of them Christians, had been trafficked from Pakistan to China as forced brides since 2018. Many were allegedly raped and beaten, and some forced into prostitution. Christian pastors often acted as brokers for the trafficking. The Federal Investigation Agency arrested 31 Chinese nationals in connection with these crimes in October 2019, but they were later acquitted, allegedly under pressure from officials concerned about damage to the Pakistan-China relationship. Activists allege the trafficking continues.
DFAT assesses that Christians face a moderate risk of official discrimination (mainly in the form of employment discrimination) and societal discrimination, and a moderate risk of violence throughout Pakistan.
[4] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.45–3.49
In a recent report titled ‘Pakistan: Christians and Christian converts’,[5] the UK Home Office states that while there is no law against religious conversion in Pakistan, renouncing Islam (apostasy) is widely considered a form of blasphemy;[6] that the situation is far more difficult for a person who is known to have converted from Islam to Christianity than for a person born Christian; and that it is rare for a person to openly convert as it is likely that a person’s conversion will become well known within their community with potential repercussions.[7]
[5] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, June 2022, Pakistan: country policy and information notes - GOV.UK (
[6] Ibid at 2.5.32
[7] Ibid at 2.5.33
With regard to societal treatment of Christian converts, the UKHO Report states that in general, society is extremely hostile towards converts to Christianity and that a Mullah may issue a fatwa calling for a death sentence against a convert who has been deemed an apostate.[8] It states that people who are known to have converted to Christianity suffer acts of violence, intimidation and serious discrimination from non-state actors, which can, in individual cases, amount to persecution and/or serious harm, and that such treatment is prevalent throughout Pakistan.[9] The report states:
In general, a person who is known or is likely to be known to have converted from Islam to Christianity and is open about their faith and conversion is likely to face societal discrimination and harassment that by its nature and repetition amounts to persecution.[10]
[8] Ibid at 2.5.34
[9] Ibid at 2.5.34
[10] Ibid at 2.5.37
The UKHO Report states that according to sources consulted by the Immigration and Refugee Board (IRB) of Canada’s Research Directorate in 2012, Pakistani society in general is extremely hostile to converts with reports of converts being harassed, attacked and ‘tortured’. The sources states that ‘attacks on those who have converted can re-occur years or even decades after they have changed religion’.[11] In addition, according to sources consulted by Christian Solidarity Worldwide (CSW), in a 2015 report, when a Muslim decides to become a Christian and their conversion becomes known, their life is at risk. Sources informed the CSW that a Mullah who hears of apostasy can issue a fatwah ordering the death of the convert.[12]
[11] IRB, ‘Pakistan: Religious conversion, including treatment of converts…’, 14 January 2013 cited in UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
[12] CSW, ‘House of Lords Hearing’, (pages 2-3), 10–11 November 2015, cited in UK Home Office Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
In a letter regarding conversion to Christianity, dated 15 February 2021 (included in the UKHO Report), the British High Commission in Islamabad states it was ‘difficult to corroborate the real situation, as this is a frequently hidden problem; our view is that converts would probably not want to draw additional attention to themselves.’ Nonetheless the High Commission states that anecdotal evidence from its local contacts in Pakistan reported that:
… it would be difficult for Christian converts to live freely and openly in Pakistan, as converts over and above being Christian. It is our view that people who are known to have converted to Christianity suffer serious discrimination, for example in the workplace or by the authorities. It is far more difficult for people in Pakistan who are known to have converted to Christianity, than it is for people who were born Christian. We understand that it would be rare for someone to convert to Christianity, or at least to do so openly, in Pakistan. It is therefore something of note for the community, with potential repercussions.[13]
[13] BHC, ‘Letter to CPIT’, 15 February 2021, cited in UK Home Office Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
In a more general sense, country information from a variety of sources report on increasing attacks against religious minorities in Pakistan, including Christians.[14] Although there are many churches in Pakistan and Christians are generally able to practice their religion without official interference or discrimination, in recent years there has been a trend towards intolerance and violence from non-state actors and Christians have been targeted in sectarian attacks against churches. According to DFAT:
Christians are targeted by militant groups in Pakistan. Police provide security for major Christian churches during Christmas and Easter, reducing but not eliminating the risk of violence. Four members of a Christian family were killed by an IS gunman in Quetta in April 2018, while an IS bombing at a Christian church killed nine people in December 2017. Christians are also victims of community violence, often sparked by religious or personal disputes. In February 2021, a 22-year-old Christian man, Saleem Masih, was beaten to death for ‘polluting’ water by bathing in it. In November 2020, a woman and her son were shot dead by a Muslim neighbour who claimed they ‘defiled’ an Islamic shrine with wastewater.[15]
[14] For example, DFAT Country Information Report Pakistan, 20 February 2019, and UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017
[15] DFAT Country Information Report, Pakistan, 25 January 2022, section 3.47
The Tribunal also note very recent developments in Pakistan, including the highly volatile and fluid political situation that resulted in the ousting of Pakistan’s Prime Minister on 10 April 2022.[16] the Tribunal note also that human rights groups, including Human Rights Watch, have voiced concerns that the political instability currently being experienced in Pakistan could result in increased violence and unrest throughout the country, and noted several explicit threats of violence voiced by politicians.[17] The Tribunal notes also country information that highlights a surge in political violence including religiously motivated terrorism in recent weeks. For example, a suicide attack took place on 7 March 2022 at a cultural festival in Sibi, Balochistan killing several members of a local police force, and a bomb was detonated at a Shia mosque in Peshawar on 4 March 2022. Country information suggests that this violence is evidence of a resurgence of militancy across the country that is seeking to take advantage of the political instability and leadership vacuum related to the recent political crisis.[18]
[16] BBC NEWS, ‘Imran Khan ousted as Pakistan’s PM after vote’, 11 April 2022. Available at:
[17] Patricia Gossman, ‘Pakistan’s No-Confidence Vote Should Respect Democratic Process’, Human rights Watch, 16 March 2022. Accessed at:
[18] The Associated Press, ‘Pakistan says 4 troops killed in attack claimed by Taliban’, 25 March 2022. Access at:
Analysis reasons and findings
Analysis
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.’
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. In tandem with the credibility of the applicant’s account is the question of whether he is in fact a bona fide adherent of Christianity. There are two competing considerations in this regard which the Tribunal keeps to the front of its mind. The first is the ease with which a claim to adhere to a certain belief system can be fabricated. At the same time, the Tribunal is in no doubt as to the predicament for an individual trying to establish such a claim, given the internal nature of a belief system.
The Tribunal considers that the applicant provided a consistent and plausible account of his circumstances, and in particular those circumstances which led him to convert to Christianity. The Tribunal notes that, where possible, the applicant corroborated his oral evidence; in particular the Tribunal places weight upon:
a.a letter dated 16 November 2017 from [a Perth NGO] assisting the homeless,[19] provided by the applicant in his application for a protection visa; the letter includes the following information (uncorrected):
[The applicant] has requested us to provide this letter to serve as proof of address and to assist in claiming Centrelink payments. [The applicant] was admitted into our service on the 2th of October 2017 and is being charged $322.00 a fortnight for lodgings. Unfortunately, since his admission [the applicant] has not been able to pay for his lodgings and has required multiple services provide emergency relief to assist with his lodgings as he is currently not receiving Centrelink payments and not titled to work. As of 15^th of November 2017, [the applicant] has been grant a protection visa and we would like to support his application to Red Cross's Band 6 Program so that he can begin the process for applying to Centrelink for financial assistance
b.the photographic, audio-visual and other information provided by [Dr B] attesting to the applicant’s baptism in the Christian faith; and
c.the information provided by [Mr A] and [Ms C] as to the applicant’s character and current situation.
[19] [Source deleted]
Overall, the Tribunal is persuaded as to the general truth of the applicant’s claims and in particular the circumstances of the applicant’s conversion to Christianity over time as he recovered from the breakdown of his marriage, the loss of direct contact with his children, and a period of substance abuse and homelessness. The Tribunal is satisfied that the applicant engaged in this conduct for genuine reasons, otherwise than for the purpose of strengthening his claim to be a refugee: s.5J(6) of the Act.
The Tribunal notes the country information set out above concerning the specific risks faced by Christian converts (from Islam) in Pakistan from non-state actors, including the possibility of being accused of blasphemy and apostasy, the general risk faced by Christians in Pakistan, and the general rise in militancy and associated violence across the country, in addition to the acute political instability currently being experienced in Pakistan, the Tribunal accepts that if the applicant were to return to Pakistan and attempt to practise his Christian faith, or even if it became known that he had converted to Christianity from Islam, he is likely to come to the attention of the community and possibly members of extremists groups. If this were the case, the Tribunal accepts that the applicant’s conversion to Christianity from Islam would soon become known – particularly given that his passport and presumably his national identity documents list his religion as Islam. The Tribunal further accepts that Christian converts (particularly those from Islam) are at a significantly heightened risk of persecution than Christians who were born into the faith in Pakistan.[20]
[20] Neha Ansari, ‘A terror redux in Pakistan?’, The Atlantic Council, 15 March 2022. Accessed at:
Having considered the available country information and the applicant’s specific circumstances, particularly the information relating to the treatment of Christian converts from Islam, the Tribunal is satisfied that in these circumstances the applicant would face a real chance of serious harm from extremists – groups and/or individuals – who would consider him an apostate, if he were to return to Rawalpindi for reasons relating to his religion and his membership of a particular social group, namely that of ‘Christian converts from Islam’ as required by s 91R(1)(b) of the Act in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. The Tribunal also considers that the applicant’s religion and his membership of a particular social group of Christian converts from Islam would be the essential and significant reason for the persecution he fears, as required by s 91R(1)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his religion and membership of that particular social group.
Relocation
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.
The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan. The Tribunal notes that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[21]
[21] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453]
The Tribunal has considered whether the applicant faces a real chance of persecution in all areas of Pakistan. As noted, the applicant originates from the Rawalpindi region in Pakistan where he lived prior to coming to Australia. This is where his parents, brother and extended family still live. The Tribunal has therefore considered whether the real chance of serious harm from the community, family members or extremists as a Christian and/or a Christian convert (from Islam) in Rawalpindi relates to all areas of Pakistan.
In considering the applicant’s circumstances and the ‘reasonableness’ of him relocating within Pakistan, the Tribunal has considered DFAT’s assessment that ‘groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country’.[22] The Tribunal notes also the relevant section of the above referenced UKHO Report that assesses that while in general those people born Christian in Pakistan are likely to be able to relocate to avoid persecution from non-state actors, this is unlikely to be a reasonable option for Christian converts ‘given that ill-treatment towards Christian converts is prevalent throughout Pakistan’.[23]
[22] DFAT Country Information Report, Pakistan, 20 February 2019, at [5.32]
[23] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
The Tribunal does not consider it would be possible for the applicant to move away from Rawalpindi to another area of the country and not reveal his faith or conversion as the Tribunal accepts that if the applicant returned to Pakistan he would wish to continue to observe and practise his Christian faith, including by attending church, as he has in Australia, and that were he to do so he would be identifiable to the authorities, and the community at large, as a convert, based on the fact that his national ID card would continue to identify him as a Muslim. If so, country information suggests that Christian converts face serious threats of harm from non-state actors throughout Pakistan. For these reasons the Tribunal is satisfied that the applicant would face a real chance of persecution in all areas of Pakistan.
Accordingly, the Tribunal accepts the applicant has a well-founded fear of persecution in Pakistan for reasons of his religion and his membership of a particular social group, namely that of ‘Christian converts from Islam’, from the community and/or extremists.
The availability of effective protection measures
The Tribunal notes that harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
Country information indicates that in general Pakistan has an effective criminal justice system capable of detecting, prosecuting and punishing acts of persecution from non-state actors. The UKHO Report notes that the police provide security at churches, sometimes complementing communities’ own security arrangements; the government has taken steps to counter terrorism and limit the capacity of groups that target religious minorities; and the police have intervened on numerous occasions to suppress mob violence directed at persons accused of blasphemy, including Christians. However, it is also noted that:
…the correct procedures are not consistently applied by police when investigating blasphemy cases, lower courts do not always apply the correct evidential standards and judges are often reluctant to decide blasphemy cases due to fear of violent retribution (see Accusations of blasphemy and Justice system). The government has also sometimes intervened and provided assistance through the courts and law enforcement in situations of attempted kidnapping and forced conversion.[24]
[24] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at 2.6.4
As noted earlier, although there is no law against religious conversions in Pakistan, renouncing Islam (apostasy) is widely considered to be a form of blasphemy. The UKHO Report does not elaborate on whether there is state protection for those at risk from non-state actors as apostates. However, the United States State Department International Religious Freedom report of 2019 states that the ‘penal code does not explicitly criminalize apostasy, but renouncing Islam is widely considered by clerics to be a form of blasphemy, which can carry the death penalty’.[25]
[25] USSD, ‘IRF Report 2019’ (section I), 10 June 2020, cited in UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at [5.3.3]
In a letter (referenced earlier) regarding conversion to Christianity, dated 15 February 2021 (included in the UKHO Report), the British High Commission in Pakistan noted that there is limited protection of religious minorities by the Pakistani government; the Ministry of Religious Affairs and Interfaith Harmony primarily deals with Hajj participation and has been ineffective in protecting the rights of religious minorities. In May 2015, a National Commission for Human Rights was established, though it has been redundant since 2019 due to the lack of serving Commissioners.[26]
[26] ‘Letter to CPIT’, 15 February 2021 cited in UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at [6.1.1]
More broadly, country information suggests that while Pakistan has a legal framework offering protection and a functioning criminal justice system, its effectiveness varies widely. DFAT advises that although Pakistan’s formal legal framework provides for state protection of people’s property and lives (among other things), it is limited due to ‘resource shortages, corruption, socio-economic factors at the individual level, and political will’.[27]
[27] DFAT Country Information Report, Pakistan 22 January 2022 at [5.1]
In terms of police capacity more generally in Pakistan, DFAT report that it is limited due to ‘lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary’.[28] DFAT also states that sectarian violence and domestic terrorism divert resources from community ‘policing’ to a more incident response and security/guarding role and that the popular perception of high levels of police corruption is widespread. With respect to the effectiveness and impartiality of Pakistan’s judiciary, DFAT states that the system is overburdened with a backlog of cases; and that local and international observers report corruption in the judicial system as well as intimidation of judges.[29]
[28] Ibid at [5.11]
[29] Ibid at [5.22]
Based on the country information set out above, when considered in the context of the particular circumstances of the applicant’s case, the Tribunal is not satisfied that the state (or any other entity) is willing and able to offer protection from non-state actors as a Christian convert (from Islam). Neither is the Tribunal satisfied that effective protection measures provided by the state (or any other entity), to the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1, are available to the applicant in Rawalpindi. Based on this country information, the Tribunal finds that the applicant would not be able to access effective protection if returned to Pakistan.
Conclusion
Considering the applicant’s particular circumstances cumulatively, and in the context of the relevant country information, the Tribunal finds that there is a real chance that he will suffer persecution involving serious harm, from the community and/or extremists, if he returns to his home in the Rawalpindi area in Pakistan. The Tribunal is satisfied that the real chance of serious harm the applicant will face if he returns to his home area in Rawalpindi will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. The Tribunal finds that the essential and significant reason for the serious harm the applicant faces is for reasons relating to his religion and his membership of a particular social group, namely that of ‘Christian converts from Islam’.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Damian Creedon
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2978

6 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Remedies