1905099 (Refugee)

1905099 (Refugee) [2022] AATA 4799 (1 November 2022)
Corrigendum
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ryan Lasaki (MARN: 1575928)
CASE NUMBER:  1905099
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE OF DECISION:  1 November 2022
DATE CORRIGENDUM
SIGNED:14 December 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

“For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration" at paragraph 14 should be replaced with: "For the following reasons, I have concluded that the decision under review should be affirmed.”
Luke Hardy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Ryan Lasaki (MARN: 1575928)
CASE NUMBER: 1905099

COUNTRY OF REFERENCE: Pakistan
MEMBER:Luke Hardy
DATE:1 November 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2022 at 1:38pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – conversion to Christianity – blasphemy laws – fear of killing – threats and extortion from family – paying back family for education – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is a citizen of Pakistan. He entered Australia on a student visa [in] September 2015. The visa was due to expire on 9 April 2018. [The applicant] lodged a PV application on 28 March 2018. [He] claimed fear of being persecuted in Pakistan for reasons of having converted from Islam to Christianity during his time in Australia. The delegate refused to grant the visa on 15 February 2019.
[The applicant] sought merits review of the delegate’s decision and the matter is constituted to me. I find the application valid.
[The applicant] appeared before the Tribunal on 20 October 2022 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent. He brought a pastor with him to give evidence about his affiliation with a Christian church in Sydney and to assert that in his opinion, [the applicant] is a genuine Christian. I was informed that [the applicant] and the pastor had known each other through church contact since 2019. Accepting that the pastor genuinely holds the views described, and accepting that [the applicant] affiliates with the pastor’s church, I discharged the witness with the consent of [the applicant] and his adviser.
The hearing was facilitated by an interpreter in the Urdu-English languages, although [the applicant] spoke English comfortably for most of the time. There were no unresolved concerns raised in connection with the hearing being conducted mostly in English. I am confident that [the applicant] was granted an opportunity to speak to his claims and that no circumstances beyond his control affected his ability to do so.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision record, which contains a summary of questions asked and evidence provided, along with identification of concerns raised. [The applicant] has not submitted that the information in the primary decision record is in any way erroneous.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, the applicant is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims
[The applicant] is a Pakistani national from Gujrat in Punjab province. He claims his family is conservative Muslim one. He claims his father is a farmer. He has [a] brother, [named], described in his PV application as residing in Pakistan but now, according to evidence given at the Tribunal hearing, residing in [Country 1]. He has [a] sister living in Pakistan.
[The applicant] claims he came to Australia with the intention of studying. He claims his travel and enrolment were paid for by his parents, the full initial outlay being 1.5 million rupees, raised mainly from savings derived from owning land for rent.
[The applicant] told me his parents expected their investment to be repaid eventually but stressed, at the hearing, that there was no formal contract or timeframe decided at the outset. He said that in accepting the assistance he also felt some filial duty to repay his parents eventually and over time.
[The applicant] told me his intention was to study [a named subject] in Australia. He said he enrolled at [College 1] for a 2-year degree. He emphasised that he had had no intention to stay here when he arrived and commenced studying. He indicated that he had intended to acquire his qualification and take his skills back to Pakistan.
[The applicant] took a 3-month course in foundation English from October 2015 to January 2016. Enrolled in his degree course, he commenced it in January 2016. In his PV application, he claims he discontinued his studies after 2016, and at the hearing he told me that he completed the two 2016 semesters, but did not attend his third semester in the first half of 2017 even though he paid his tuition fees for that term. He made it clear to me that he did not even pay for the fourth semester, which ran through the second half of 2017, having not even sat the third.
[The applicant] essentially confirmed that his parents were still funding him at the time he dropped out of study at the beginning of 2017. He did this when he said that they stopped funding him after they found out he was a Christian in July 2017. He said they found out when he called them and told them he was a Christian. However, I will return to the subject of religious conversion a little later below.
[The applicant] acknowledged before me that he had understood at the time he ceased studying that as long as he remained in Australia without attending college he was in breach of his student visa. I asked him if, at that time, he had considered returning to Pakistan knowing that he was essentially a failed student who was in breach of the visa that allowed him to remain here. In reply, he said that at that time he was thinking of all the money his parents had outlain for him to come and study here.
[The applicant’s] cessation of studies at the end of 2016 evidently coincide with his commencement in part-time work. He said at the hearing that he began working two days a week at that time. Hence, during what would have been his third semester in the first half of 2017, he was working but not studying. He said he was working as [an occupation 1].
It is useful to note here that, in his evidence to the delegate, [the applicant] said he converted from Islam to Christianity in October 2017 after doing some research and finding that Muslims were always fighting each other. He said his parents threatened to kill him if he ever returned to Pakistan. As the delegate records: “The applicant was asked when he informed his family about his conversion. The applicant responded that it was in November 2017.”
[The applicant] also told the delegate that he stopped studying in November 2017, the month following October 2017, because he could not work, study and convert to Christianity all at the same time and decided then, in November 2017, to stop studying.
It can be seen that the chronology [the applicant] gave to the delegate is at odds with two claims made at the Tribunal hearing: that [the applicant] ceased studying in 2016, not November 2017; and that he had already considered himself a Christian in July 2017, rather than October 2017. He told me his heart was already Christian in July 2017. He did not suggest to me that religion had anything at all to do with why he stopped studying in 2016.
It is also useful to note that the delegate disclosed information to [the applicant], from his [social media] account, to the effect that at least since November 2017 he had
been sending money from Australia to his father and sister in Pakistan on a regular basis after he allegedly informed them about his conversion to Christianity. In fact he sent money to them nine time after they allegedly threatened to kill him because of his conversion to Christianity.
The nine remittances referred to here would have been between November 2017 and 11 February 2019, the date of the PV interview.
The delegate evidently put to [the applicant] that this behaviour did not seem to sit with the predicament of a person being threatened with death by those parents. [The applicant] said that his parents blackmailed him when he told them about his conversion, saying they would not harm him if he sent them money.
[The applicant’s] claim about blackmail is a relevant claim about his family’s hostile treatment of him, but he did not disclose it until the delegate put potentially challenging information to him at his PV interview.
I asked [the applicant] if it were possible that he might already have been sending money back to his family prior to when he told them he was a Christian (whether that was in July or November 2017). In reply, he said, “Maybe I did, but I don’t remember.” He said that the intervening seven years made it hard for him to recall an exact date on which he started to send money back to his parents. He indicated he was unable to rule out that he had begun sending money back to his parents at some time prior to telling them he had become a Christian because he could not now remember the date when he started to do so. I told him I was asking him about this in the context of what he had told the delegate about his remittances back to his father and sister. In reply, he said that when he called his family to discuss his situation in Australia his parents “threatened” him, ruing all the “wasted money.” I put to him that this evidence of his parents’ preoccupation with “wasted” investment in his education seemed different from what he had told the delegate about their anger arising over his claimed religious conversion. In response, he said he was confused when he spoke to the delegate, never having been interviewed by anyone before. I have considered this explanation, but on the evidence in this matter as a whole, I have ultimately given it no weight.
Up to this point, there is inconsistent evidence about when and why [the applicant] ceased his studies; when he converted to Christianity; when he told his parents he had become a Christian; when he began to send money back to his parents; and even why he started sending money to them, given his acknowledgement of a mutual expectation from the outset that he would repay his parents for their financial outlay over time. Meanwhile, [the applicant’s] evidence to the delegate about quitting studies because he could not manage religious conversion on top of studying and working seemed undermined by his having already quit studies in 2016 when he started working and before he purportedly converted in 2017.
[The applicant] submitted screen captures of SMS-style chat that he had engaged in with a man called [Mr A] in late 2017 and early 2018. He told me that [Mr A] was his Bible mentor and, as it were, prayer buddy. He designated this material “Christianity – Evidence” and “Evangelising SMS Evidence.” I examined this material with [the applicant].
Of particular interest to me was a message that [the applicant] evidently sent to [Mr A] on “Fri, [date]/11/2017” in which he said:
Hi bro I hv been in big trouble from last 3 days. Because now my family know that I’m Christian. They were calling me frequently from last 3 days that’s why I switched off my phone.
This evidence seemed arguably more consistent with [the applicant’s] claims to the delegate about his parents having found out he was Christian in November 2017, and not July 2017 as he had said to me at the Tribunal hearing. I put to [the applicant] that, according to the evidence he had given me, his words to [Mr A] were not factual in that he appeared to be announcing to [Mr A] that his parents had only just found out he was a Christian. In response, he said that his parents had been calling him to harass him prior to those “3 days” about once every two, three or ten days, ever since he had revealed to them in October 2017 that he had converted to Christianity but their calls had become more frequent and intense over those last three days before his mentioning them to [Mr A]. I reminded him of his evidence at the hearing about his parents having begum to extort money from him back in July 2017 upon his having told them he was a Christian, and here he changed his evidence, saying that back in July 2017 he had only told then he was thinking about converting to Christianity. When I drew the evident inconsistency to [the applicant’s] attention, he adhered to one of the two versions: he said he converted in October 2017, not July 2017. It remained clear that [the applicant] had told me he had told his parents in July 2017 that he had become a Christian. The factual discrepancy was not resolved.
I drew [the applicant’s] attention to a message he sent [Mr A] on “Mon, [date]/11/2017” saying:
Hi bro I’m please save me I’m in big trouble this time. My college cancel my COE because I couldn’t pass my exams. Because last two months I have big tension in my mind from family and relatives. So I couldn’t prepared exams and they fail me. I’m afraid that immigration wouldn’t allow extension in my visa.
In this version of events, [the applicant’s] college has just cancelled his “Confirmation of Enrolment” (CoE), and, logically, given his reference to “the last 2 months,” this happened in Semester 4. This version of events pre-supposes that [the applicant] has been able to proceed from completing Semester 3 to Semester 4. However, he indicated to me that he never even attended Semester 4. He also clearly told me that he did not even attend Semester 3, the likely outcome of that being that he could not have net the requirements of Semester 3 in order to proceed to Semester 4. Any evidence that he might have signed up for Semester 4, such as a photocopy of a form submitted along with the SMS evidence, is negated by what he said at the Tribunal hearing.
There is also another message to [Mr A] dated “Fri, [date]/12/2017”:
Hi bro I’m too much worried about my visa status because I don’t have any COE and if once immigration got noticed that, they will deport me immediately. Plz do something!!!
A further message to [Mr A] sent the same day says:
Plz save me I don’t wanna die like this
Given the evidence in the PV application form and provided at the Tribunal hearing, I asked [the applicant] if it had not been disingenuous for him to tell [Mr A] [in] November 2017 that he had just failed exams at a college he had, in fact, not even been attending at any time since 2016. In reply, he said he had not previously informed anyone in his church about the troubles he had been having over time. He said that it was in November 2017 that he “just thought of telling the Church.” He indicated that this was why he said what he said to [Mr A]. I then put to [the applicant] that as far back as the beginning of 2017 he would have known that he had severed continuity with the college by not turning up for Semester 3. On his evidence to me he had not even paid his enrolment for Semester 4, which would have been the first reason a student would fail to be eligible to receive a CoE at least from the beginning of that semester, rather than the reason he had given to [Mr A] in his [later] November 2017 SMS. Put bluntly, it appeared that he had been untruthful to [Mr A] in the course of trying to engage the latter’s sympathy and assistance in the matter of his immigration status. In reply, [the applicant] said that whatever he had said in the [later] November 2017 SMS to [Mr A] was true. I put to him that I could not at that stage see on the evidence that this was the case. In reply to that concern, [the applicant] said he could not remember. The inconsistencies disclosed in the SMS evidence were not resolved.

Putting aside questions about when [the applicant] became a Christian and when he told his parents, I asked him to give me some insights into how he came subjectively to abandon Islam and embrace Christianity. He said that he started “fading” from Islam when he thought about extremist Muslim suicide bombers: he said he had trouble accepting that they would go to Paradise, as they proclaim they would, along with their victims. Here he seemed to be expressing a viewed capable of being shared by moderate Muslims, one that did not need the abandonment of Islam for him to espouse. I asked him for more detail about what had gone on in his heart and mind, as it were, and he said he was just studying Christianity by himself. I put to him that evidence about the personal and subjective spiritual change seemed hard to glean from him, his evidence about what he saw as the differences between the religions being more or less a matter of rejecting extremist manifestations of Islam. In short, as I put to him, he had made intellectual, historical comparisons between two different religious cultures but had provided hardly any insight into any kind of personal journey. In reply, [the applicant] said he had done a lot of Bible study. He referred me to photocopies of the covers and, in some instances, the contents of a number of instructional booklets, which he had submitted prior to the hearing. I acknowledged having received these but put to him that it would be hard to give them much, if any weight, on their own.
I also acknowledge that [the applicant] has submitted a few pages of a catechetical quiz or test in which Biblical quotes and references are required to be completed by the catechumen, in this instance the quiz having evidently been filed in by [the applicant] himself. The answers provided appear correct. This evidence gives some support to [the applicant’s] claims about having undertaken Christian religious instruction in Australia but, overall, it appears to be evidence merely of a memory test. I am unable to give it weight, on its own, as evidence of genuine, subjective embrace of Christian belief.
I reminded [the applicant] that he had claimed to the delegate that he stopped studying at his college because he could not work, study and convert to Christianity at the same time. In response, he said he stopped study because his parents stopped funding him. I put to him that this assertion was different from saying that he had himself had difficulty managing the three activities at once. He then said that he started going to church in July 2017 and was working two days a week at that time. I put to him that he had already stopped attending college back in 2016. [The applicant] then said there had been some mistake and I asked him if the mistake had been his, and he said it had not been. I reminded him that he had submitted the delegate’s record of his interview testimony without any corrections. He indicated that the record might yet contain errors. However, these discrepancies in his evidence about how religious conversion affected his studies were not resolved.
[The applicant] submitted two letters from [Pastor A], pastor of the [Church 1] Baptist Church. The first letter is dated [in] March 2018 and addressed “To whom it may concern.” In this letter, the author recalls meting [the applicant] at a church gathering where he was invited to attend a church service. He says [the applicant] soon afterwards made a “profession of faith” and embarked on Bible study. He says that in January 2018, [the applicant] expressed a desire to be baptised. Here the pastor explains having told [the applicant] at the time that baptism would do nothing for him if he were not genuine:
I then told him … ‘well, I do not know your heart, only God does, but based on your profession I will baptise you.’ … He assured me he understood and wanted to follow Christ. So I baptised him.
The second letter is dated letter is dated [in] February 2019 and is also addressed “To whom it may concern.” Though shorter than the first letter, it discusses the same events. [The applicant] appears to have requested the first letter just prior to lodging his PV application on 28 March 2018.
[The applicant] claimed that his parents stopped harassing and demanding money when he changed his telephone number three years ago. That would have been in 2019. I asked him why he took so long to change his telephone number, given the claimed circumstances and he said Christianity inspired his behaviour guiding him to honour his parents, even in hard times, according to the ten Commandments. I noted this, although I also note that the Ten Commandments are not unique to Christianity: they appear in the Torah at Exodus 20: 2–17 and Deuteronomy 5: 6–21; and they are embraced in the Koran, having been received by Prophet Musa (Moshe/Moses) upon meeting with God on Mount Sinai, as described in Surah A'raf (7: 142-145).
I asked [the applicant] how his parents communicated their threats and money demands and he said the latter were all made by telephone. I asked [the applicant] if he and his parents ever discussed what amount or amounts they wanted from him. In reply, he said no amount had ever been mentioned. He then said his parents just wanted him to pay them what they had invested. This seemed to me to be a further indication that [the applicant’s] parents were preoccupied not with extortion or religion but with how they were going to recover wasted on supporting his education efforts in Australia.
[The applicant] claimed at the hearing that there was other evidence of his parents’ hostility. He said his passport expired in 2020. He said he told the Consulate he was applying for a PV. He said the Pakistan Consulate told him he would be required to submit his national ID card and family ID, or his father’s ID in order to apply for a passport renewal. Hereon, his evidence became somewhat confused. First, he said that the Consulate told him his parents had discovered he had converted to Christianity, which is evidently not a crime in Pakistan. Then he said that some kind of passport officials went to his family home and were told by his parents that they disowned him. He seemed to say that he learned all of this verbally, none of it having been written down anywhere; he said all communications on these topics had been by telephone. His claims here are unsupported. I asked if the Consulate offered him alternate means of renewing his passport in circumstances where he and his family were not talking, as it were. He said it did not. I expressed some scepticism about Consular officials going to the home of a passport applicant’s family to try and sort out the issue of supporting documentation, asking him if it did not seem incongruously “labour-intensive.” [The applicant] said that the Consulate acted on his having mentioned he was applying for a PV. I note that these claims about the passport application are new claims, but draw no negative inferences for that reason as they relate to 2020, which is since the primary decision. However, none of this information is supported or substantiated, and I am unable, after considering the whole of the evidence in this matter, to give it any weight.
I asked [the applicant] if he had any material evidence at all to support his claims about extortion threats from his family and he then disclosed new information about his [brother]. He said this was new information that he had not yet even disclosed to his adviser. He then opened a document in his mobile telephone: an October 2022 notification of the granting of an Australian visitor visa to [the applicant’s brother]. He said his brother would have obtained that visa for one reason only, being to come here and kill him. In this situation, I note, the brother would be killing [the applicant] before he had done much more than begin to repay his debt to his parents, as he had ceased sending money home by October 2017, as he indicated at one stage of the hearing, and had not heard from his parents since 2019 upon his changing his telephone number. [The applicant] said his brother had been living in [Country 1] for several years.
I asked [the applicant] if his brother sent him this notification letter as an attachment to a text message, such as a threat of any kind, and he said his brother did not. He said his brother just sent the visa notification letter. He said that it was obvious to him, in any event, what had been his brother’s purpose in obtaining the visa and sending the notification. Hereon, however, [the applicant’s] evidence became confused. I asked him how his brother had obtained his telephone number and he said he had given it to him. I then put to him that he had had a new telephone number since 2019, and he said, “I blocked him.” I put to him that his evidence did not seem to make sense, and he then said his brother sent the notification from another number: one that he, [the applicant], had not been able to block. I asked him how his brother would have been able to obtain his new telephone number and he said his telephone was hacked two-and-a-half years ago. I asked him if he had become aware of the hacking, an obviously hostile action, at or soon after the time it occurred and he said he had done. I asked him if he possessed any evidence of the hacking, such as in the form of communications with his bank or other institutions, and he said he did not. He said he did not change his telephone number, which was something he did not want leaked to his family, after the hacking; this struck me as odd in the claimed circumstances. I asked him if he knew or suspected who might have hacked his details, and he said it might have been some of his friends.
I asked [the applicant] why he had not presented the visa notification letter to his adviser before introducing into evidence at the hearing, and he said he had been scared.
I asked [the applicant] if he had any recreational interests and he mentioned sports in general and cricket in particular. We talked about the Cricket World Cup coming up in Sydney in late 2022. I asked him of his brother is interested in cricket and he said that whereas his brother used to be interested he did not know if he still was.
I asked [the applicant] why his brother would have sent him a “heads up,” as it were, of his intention to kill him: armed with this information, he, [the applicant], might evade his brother, say by going into hiding, or by alerting Australian authorities somehow. In reply, [the applicant] said he did not know why his brother sent him gave him this advance notice of intended travel to Australia. I asked him of he wanted to comment on the delegate’s scepticism about his family’s threats and extortion, and he said he had not been feeling confident when he gave his testimony to the delegate; by this he appeared to be saying he had been nervous at the interview.
[The applicant] provided evidence of text conversations with [Mr A] in 2017 in which they discuss going together to preaching activities in places like [Location 1].
I asked [the applicant] about a claim he had evidently made about wishing to return to Pakistan to preach Christianity, but for the threats he had received from his family. I asked him to clarify whether this meant that, absent the alleged threats from his family, he had no fear of being persecuted in Pakistan. In reply, he said that he feared being charged with apostasy by persons outside of his family. He said that there is no protection for converts to Christianity in Pakistan.
At the Tribunal hearing, [the applicant’s] adviser made some closing oral submissions in which he emphasised that there had been no actual contract between [the applicant] and his parents over repaying their investment in his education. The adviser said that if [the applicant’s] baptism and affiliation with Christians in Australia were to become known in wider society in Pakistan, serious harm would await him. The adviser said that he had attended the delegate’s interview with [the applicant], who had been nervous on that occasion. He asked, in instances where there appeared to be discrepancies between testimony given to the delegate and evidence provided at the hearing, that the Tribunal give more weight to the latter.
In a submission to the Tribunal, [the applicant] said he started attending the [Church 2] Baptist Church in 2019, because it was closer to where he was living than the [Church 1]. 2019 is evidently when he met the pastor who attended the beginning of the hearing offering to bear witness to [the applicant’s] presence as a church member. In the same submission, [the applicant] described how he kept in touch with his church and continued learning Bible teaching during various COVID-19 lockdowns. He concluded this submission referring me to an article from the BBC[1] about the murder in Pakistan of a person accused of “blasphemy.” A close inspection of this article reveals that it relates to an ethnic Sinhalese Sri Lankan national with a traditionally Buddhist name who was evidently accused in Pakistan of having torn down posters featuring the name of the Prophet Mohammed.
[1] “Pakistan: Death sentences over killing of Sri Lankan accused of blasphemy,” BBC News, 18 April 2022,
In another submission, dated 12 February 2019, [the applicant] claimed that he attended some classes at his college in 2017 and mentioned having said this to the delegate. I have considered this evidence alongside his claims to me and his request, through his adviser, that I give more weight to evidence provided at the hearing, where he said he stopped attending classes in 2016. He also claimed in the 12 February 2019 submission that his parents told him they would accept him as a Christian as long as he kept sending them money. He talked about Muslim flatmates in [Suburb 1] having initially been tolerant of him but having evicted him when he became more involved in Christianity and started cooking bacon and ham. He said he could not answer the delegate’s questions correctly because he had been suffering depression in 2017.
Post-hearing submission
On 27 October 2002, I received a post-hearing submission from [the applicant’s] adviser:
1. The applicant’s claim is that he is a refugee under the refugee definition for the reason of religious conversion. The applicant has a well-founded fear of prosecution if he had to return to Pakistan.
2. The majority of the hearing was allocated to the hypothesis that [the applicant] obtained a student visa in order to work in Australia, pay back his father and remain in Australia permanently.
3. A short final part was also allocated to his religious conversion. The member stated that the applicant arrived at a conclusion to convert to Christianity as a result of “intellectual” reasoning or analysis.
4. The applicant’s church pastor, [named], was also discharged at the beginning of the hearing as the member did not have any further questions for him.
5. There were some questions that the applicant could not answer because of the lapse of time. The member raised there were credibility issues around some of the answers.
6. Our respectful submission is that the benefit of the doubt be given to the applicant since it appeared that the member did not have any further concerns about his religious conversion.
7. We request his conversion to Christianity be the focus of the review assessment. This gradual process started after his arrival in Australia.
8. Also it is important to note that the definition of Refugee is a forward-looking one. that is, the way the applicant’s conduct is likely to be perceived in Pakistan is to be considered even if the applicant is not a Christian. To avoid any doubt, the applicant’s claim is that he is a genuine [Christian] convert. Our point is to draw your attention to the fact that how his conduct may be perceived in the future in the receiving country is of great importance.
Conclusion
We would like to thank you for the opportunity you have given to the applicant. We would also like to request the benefit of the doubt be given to the applicant if there is any credibility concern.
Your attention is very much appreciated.
There may be a misunderstanding on the part of [the applicant] and his adviser about my actions in respect of the intended witness at the hearing. I accepted that the witness perceived [the applicant] to be a genuine Christian and discharged him after hearing his answers to a few questions because it appeared that the more significant enquiry was necessarily the examination of [the applicant’s] own perspectives regarding his claimed conversion.
Independent country information
I have had regard to the following information[2] from DFAT:
[2] “DFAT COUNTRY INFORMATION REPORT PAKISTAN,” 25 January 2022
Blasphemy
3.32      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.
3.33      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.
3.34      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 Punjab after allegedly urinating in a Madrassa library.
3.35      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.
3.36      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, Punjab, 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 Punjab, 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.
3.37      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.
…
Christians
3.45      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 Punjab, 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.
3.46      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.
3.47      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.
3.48      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.
3.49      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.
S.5J(6) of the Act

I accept that [the applicant] has been baptised and has engaged with Baptist church communities in Australia. It is therefore incumbent on me to have regard to s.5J(6) of the Act which states:
In determining whether the person has a well founded fear of persecution for one or more of the reasons mentioned in paragraph [5](1)(a) [of the Act], 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.
There is sufficient evidence of social dependence and benefit in [the applicant’s] case for me to find that his baptism and engagement with the Baptist Church in Australia is not solely for the purpose of strengthening his claim to refugee status. Hence I do not disregard this conduct.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220 .
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]
[5] 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
[6] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, [the applicant] claims to have converted in Australia from Islam to Christianity through reflection, religious study and baptism. He claims to have been attending Christian church services and undertaking preaching and other related activities for over five years. He has provided witness evidence of his baptism in [Church 1] in January 2018 and of his participation in the community of the [Church 2] Baptist Church since 2019. He has also provided evidence of SMS-type chats in late 2017 and early 2018 with [Mr A], his Bible study mentor. I find that [the applicant’s] claims have nexus with the “religion” criterion in s.5J(1)(a) of the Act, in that “religion” is the essential and significant factor in the harm he claims to fear. I accept that genuine converts from Islam to Christianity face a risk of being persecuted in Pakistan, although the independent evidence argues that whether the risk is real may well depend on individual circumstances. I accept that [the applicant] has been socially affiliating with the Baptist Church since around October 2017; however, whether this is for genuine religious and spiritual reasons is a separate matter.
I accept that [the applicant] is from Gujrat in Punjab province. I accept that his family is in farming. On the evidence before me, relating to ownership of land, I find that [the applicant’s] father is not merely a farm labourer but also a landlord. [The applicant’s] overall claims in this matter claims depend in part on the fact that his family is a strict and conservative Muslim family. However, his claims about his family being a strict, conservative Muslim family are unsupported. I have considered giving [the applicant] the benefit of the doubt on this point, but there are so many problems of inconsistency throughout his evidence that I am unable to do so. Whereas I accept that [the applicant] is from at least a nominally Muslim family, I am not satisfied on the evidence overall that, to any significant extent in this matter, he comes from a strict and conservative one.
I find on the evidence that [the applicant] was sent by his parents to Australia in 2015 for the purpose of completing a degree in [Subject 1], in the first instance, and to attempt to settle here as a skilled migrant. I accept that they paid for his travel, tuition and part of his upkeep out of money saved from rent received on land they own. I find on the evidence before me that from the outset there was an expectation that [the applicant] would contribute to his upkeep as a student and that he would at some point, in due course, start to pay back at least some of his parents’ investment. It is on this evidence that I conclude that, were there any original expectation that [the applicant] earn his degree and take it back to Pakistan, this was only transient.
I accept that [the applicant] completed a foundation English course in early 2016 and then proceeded to sit the first semester of his [Subject 1] degree studies an [College 1 in] Sydney in March 2016. I accept that he completed this semester and met its academic requirements in the middle of 2016 and also did the same in his second semester at the same college. I accept that [the applicant] paid his tuition ahead of Semester 3, which commenced in early 2017. I accept that he did not attend Semester 3. I find on the evidence that [the applicant] commenced what he claimed was a part-time job as [an occupation 1] by the beginning of Semester 3.
There is some evidence on file to the effect that [the applicant] may have at least part-paid tuition for Semester 4 by July 2017 but was still required to pay a balance in order to receive a CoE. Perhaps had he completed payment and obtained a CoE, he might have been able to re-commence Semester 3, but this is mere speculation. In any event, I find on his evidence that he did not attend Semester 4, just as he had not attended Semester 3.
It is unclear from [the applicant’s] evidence when his parents allegedly stopped sending him money. Part of the problem is that he has given inconsistent evidence over time as to when they purportedly found out he had converted to Christianity. At one point, it will be recalled, he told me that maybe he had already started sending money to his parents before July 2017 when he purportedly told them he was Christian, explaining to me that he could not clearly recall. In any event, the tide of remittances changed at some point, and on the evidence before me the change occurred when [the applicant’s] parents became aware that they were wasting their financial investment in him, which was probably during, or by the end of, Semester 3 in mid-2017.
[The applicant] evidence about telling his parents he had converted to Christianity is problematic from a range of viewpoints. At interview, he told the delegate he informed them in 2017 November 2017. At the hearing, he told me he had told them in July 2017. When I questioned the consistency of his evidence, he placed emphasis on the July 2017 version saying he was already Christian in his heart at that time. However, later, when we discussed his November 2017 message to [Mr A] about his parents only just having found out he was Christian, he revised his claim about the significance of July, saying he had only mentioned to them that he was attracted to Christianity at that time. Notwithstanding these explanations, [the applicant] did not resolve conflicting evidence about when his parents began to threaten him and demand money.
[The applicant] claims that I should rely more on what he said at the hearing than on what he said to the delegate due to his having been nervous at the delegate’s interview, his never having been interrogated before. I have considered this claim, but ultimately I give no weight to it. On 14 February 2019, after his PV interview, [the applicant] provided submissions to the delegate, such as evidence of his chats with [Mr A], in support of claims he had made at the same PV interview, which is to say he made no attempt to change any inaccurate information provided in a state of nervousness on the occasion, but rather sought to support it with documentation. The material he submitted to the delegate included evidence of chats with his Bible mentor [Mr A]. It is reasonable to expect that [the applicant] would have taken the opportunity to correct errors in his evidence if, at the time, he was aware of having been nervous and hence inaccurate in giving testimony at the interview but, though represented, he did nothing of the kind.
This brings me to evidence to the effect that back in and around November 2017, [the applicant] was not being truthful in his communications with [Mr A], whose assistance he was evidently trying to solicit in respect of his immigration status. I say this because, if July 2017 is when all [the applicant’s] problems with his parents began, which is what he told me at the Tribunal hearing, then he was being disingenuous when he told [Mr A] on [a day in] November 2017 that the problem had only begun a few days earlier. Furthermore, I find that he was being untruthful and manipulative when he told [Mr A] [in] November 2017 that he had just found out his CoE at college had just been cancelled because he had recently failed exams, explaining to [Mr A] that this had been due to recent worries arising from problems with his family. As already noted, it is explicit in the chat printouts that [the applicant] was telling [Mr A] these things to solicit urgent help with his immigration status. My overall impression is that his relationship with [Mr A] was, to quite a significant extent, disingenuously and untruthfully motivated. I have given this some weight in my overall findings as to the genuineness of [the applicant’s] claimed conversion to Christianity, not least because [the applicant] was being untruthful and manipulative with an apparently trusting church fellow around the time of his baptism.
[The applicant’s] evidence of baptism is provided in the form of a photograph of him with [Pastor A] standing fully clothed in an above-ground backyard swimming pool and two letters form [Pastor A] himself. As stated, I accept that [the applicant] was baptised into the Baptist Church in January 2018. I have had regard to [Pastor A’s] remarks that the baptism rite means nothing if the neophyte is not genuine. I have had regard to [Pastor A] having nonetheless placed faith in [the applicant’s] oral profession of faith. I have had regard to the evidence of the intended witness who has known [the applicant] through the latter’s regular observances in the Baptist Church since 2019. On the evidence overall, however, I am not satisfied that [the applicant] was baptised or has affiliated with Christianity for genuine reasons.
I am confident in this finding because [the applicant] has given inconsistent and unresolved evidence about when he began to become Christian. He gave inconsistent and, I find, untruthful evidence about having begun to study Christianity before he gave up studying [Subject 1] and reaching a point where he could no longer study, work in his part-time job and prepare for baptism all at the same time. I give some wight to his inconsistency and untruthfulness here.
I am all the more confident in this finding because, as its best, [the applicant’s] claimed dissatisfaction with Islam as a belief system was based on little more than dissatisfaction with the behaviour of certain, less tolerant Muslims. This struck me as a superficial basis for abandoning one’s own beliefs hitherto. Meanwhile, efforts to encourage [the applicant] to speak about any profound and individual subjective change, or spiritual revelation, generally took us nowhere. I recall his having vaguely suggested that he was attracted to Christianity because he discovered, in the course of some research he initiated, that Christians were generally less violent than Muslims were, and I devoted some time in the hearing to this topic in the hope of hearing a genuine human narrative, perhaps about a search for truth, but none emerged. It does not concern me that [the applicant] seemed ignorant of a history of violent Christian sectarianism as knowledge should not be mistaken for belief, and vice versa. However, apart from citing a Commandment that would already have been incumbent on him as a Muslim, [the applicant] provided little to no evidence as to a genuine change in personal spiritual insight consistent with abandoning one religion, at potentially great risk of being harmed, for another.
[The applicant] gave vague and inconsistent evidence about when his parents started to demand money from him in exchange for accepting his conversion to Christianity. His claim about his brother’s tourist visa having been obtained for the purpose of killing him here in Australia is dismissed as fanciful. His evidence on this particular topic was at its weakest when he tried to explain how his brother was able to send him a message and attachment after he purportedly changed his number in 2019. On his evidence overall, I do not accept that any of his family members have threatened or tried to extort money from him in any way, let alone commenced taking steps to kill him. Also, I do not accept that [the applicant] has been truthful about changing his mobile telephone number in Australia in 2019 to one that he did not share with his family. I simply do not believe the story about the hacker, and find that [the applicant] improvised it at the hearing, contradicting a claim he had made minutes earlier, On the evidence before me, to try and manage a response to a challenging position the Tribunal put to him. I find that [the applicant] has been sending money back to his parents for a completely different reason than the one claimed, and the most likely reason that emerged in his evidence at the hearing was that he has been paying back at least some of the money his parents had invested (possibly unwisely) in his education.
Notwithstanding the belief that [Mr A], [Pastor A] and the intended witness have placed in [the applicant’s] faith, I find that he is a thoroughly unreliable witness. I do not accept that he is a genuine Christian. I find that he will not identify or practice or preach as a Christian in Pakistan because he is not genuine, rather than because he fears being persecuted for doing so.
I still do not know why [the applicant] did not proceed to attend classes in Semester 3, but I conclude that I am not satisfied on the evidence before me that it was for any reason that supports his claims.
It is suggested or at least implied that [the applicant’s] baptism, his affiliation with the Baptist Church and imputed reasons for having done so may somehow come to light in Pakistan with the result that he will consequently be persecuted. Relevantly, on the evidence before me, I do not accept that he has told his family that he has genuinely converted to Christianity. They may or may not be in on what I conclude to be a ruse aimed at an immigration outcome but I do not believe on the evidence before me that they genuinely believe he has converted to Christianity, let alone that they want to harm him for that reason. Meanwhile, I am not satisfied on the evidence before me that anyone else knows or would come to know of [the applicant’s] baptism or affiliation with the Baptist Church in Australia. Hence I do not accept that he will have been discovered to have “converted” or abandoned Islam, or that he will be regarded as an apostate or blasphemer in Pakistan, let alone that he will be persecuted as such.
On the evidence in this case I its entirety I am confident that [the applicant] is not a witness of truth. I am not satisfied that eh faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for reasons of religion or any other reason in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Pakistan, I find that Pakistan is the receiving country in this matter.
[The applicant’s] claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant’s] protection claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 4799

1 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction