1906572 (Refugee)

1906572 (Refugee) [2021] AATA 1642 (3 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906572
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Scott Clarey
DATE:3 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 3 May 2021 at 2:15pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Christian – particular social group – Christian converts from Islam – some church attendance and questioning of Islam in home country – increasing attendance and activities and baptism in Australia – genuine convert – mental health and treatment – significant diagnosed disorders – fear of harm from family and extremist individuals and groups – blasphemy laws, violence, harassment and discrimination – vulnerability due to mental health conditions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant], who claims to be a citizen of Pakistan, applied for the visa on 25 September 2017. On 20 February 2019, the delegate refused to grant the visa. On 20 March 2019, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision.
[The applicant] appeared before the Tribunal on 19 March 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Urdu (Pakistan) and English languages. His representative was also present at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.
Identity
On the basis of the copy of [the applicant]’s passport provided to the Department, I accept that he is a citizen of Pakistan and that his identity is as he claims it to be. I accept that Pakistan is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
Relevant background
[The applicant] is a [Age 1]-year old man who was born in Lahore, Punjab, Pakistan on [date]. In his protection visa application he claimed to be of no particular ethnic group and that he is of the Christian faith. At the hearing [the applicant] stated that his parents, [brothers] and [sister] live in Pakistan. [The applicant] stated that he failed to complete his final year of high school but subsequently completed [Qualification 1] in Pakistan. [The applicant] commenced [Qualification 2] at [institution] in Australia and was engaged in study until March 2017. [The applicant] stated that he had worked in his father’s [Product 1] business prior to his arrival in Australia and was employed between September 2014 and June 2016 in Australia in retail and as a warehouse worker. He first arrived in Australia [in] June 2014, having departed Pakistan legally, and entered Australia on a student visa.
Claims from the protection visa application
[The applicant] set out his claims for protection in his application form as follows:
Q75: I am seeking protection in Australia so that I do not have to return to:
A:Pakistan
Q76: Why did you leave that country/those countries?
A:My life is in danger. I fear of my life in my country as they were (My family and religious extremist groups Sipa Sahaba – lashkare – Jhangui, Deoband and Taliban) against my religious views and my intrest in Christianity. I Didn’t disclose at the time of applying for student visa because the situations were getting wore by the way my family treated me. They torture me mentally. They have disowned me. I have no family no support in my country. Ittwas difficult for me to live and follow my faith in that country. Because of extremist groups and Islamic laws.
Q77: What do you think will happen to you if you return to that country/those countries?
A:If I return back to my country the extremist religious groups and my family will kill me. Because I am not a muslim anymore and they are keen to destroy my life in order to go in paradise according to their belief. They can kidnap me toture me and kill me to death.
Q78: Did you experience harm in that country/those countries?
A:Yes. I did experience ham in my country. My grandfather broke my [bone] in a result of not accompaning him to the madrass for Islamic teachings. Me and my Brother got bashed from group of people who belong to (sipasahaba and taliban). I witness bashing of my Christian friends and family because of the blasphamy.
Q79: Did you seek help within the country/those countries after the harm?
A:Yes. Police were unable to protect because they are not intrested to help Christians or the people who are not Islamic. They follow and protect only muslims.
Q80:Did you move, or try to move, to another part of that country/those countries to seek safety?
A:Yes. Yes we changed house because of the attacks on our family from extremist groups. We change house from Faisal town to Johar town in lahore.
Q81:Do you think you will be harmed or mistreated if you return to that country/those countries?
A:Yes. My family, extremist groups and muslims of Pakistan will kill me, Because I am a Christian now and it is a Islamic law to kill a person who leave Islam. They can kill me because of blasphamy law of my country. Any muslim in my country can kill me especially my family and those extremists groups.
Q82:Do you think the authorities of that country/those countries can and will protect you if you go back?
A:No. I tried to seek help from the authorities but as a muslim country and Islamic laws are in action they were not able to protect me. They can’t protect because pakistan is a extremist state and is runned by religious fundamentalist.
Q83: Do you think you would be able to relocate within that country/those countries?
A:No. These extremists groups have their branches in all parts of country and they can go where ever they want. There is no security. Goverment is unwilling and unable to protect Christian converts.
I note that [the applicant] was provided with an opportunity by the Department to attend an interview to discuss his claims for protection on 19 March 2018 and again on 18 April 2018. [The applicant] did not attend on either occasion and claimed this was due to his poor mental health at the time (issues relating to [the applicant]’s mental health are discussed further below).
[The applicant] was given an opportunity to provide further information to support his claims in written form on 30 April 2018. His submission was received on 27 May 2018 and contained the following additional claims:
·He first went to church at [Age 2] years of age to view the religious iconography. At [Age 3] he attended Sunday services and was beaten by his family.
·His grandfather is violent and controlling. He once caused his mother to suffer third degree burns to her [body], leaving her [scarred]. This caused the applicant to question Islam, as he grew up witnessing abuse and control in its name, both within his family and in the community.
·In 2010 he was made to attend a Deoband camp where he was subjected to religious instruction. In the camps young men are trained in sharia and jihad. He escaped after three days but his grandfather locked him in a room and beat him.
·He has been attending church in Australia since late 2016 and this has helped with his recovery. He stopped practising Islam in the two years prior. He intends to be baptised and currently regularly attends church.
·He would not be able to relocate in Pakistan because his grandfather is well connected and knows the Prime Minister among others. He has no support and fears a relapse of his illness where specialist care would not be available. Mental illness is stigmatised in Pakistan and he would be persecuted on this basis as well.
I note that [the applicant]’s representative forwarded a submission to the Tribunal dated 18 March 2021 comprising a compilation of letters/reports relating to [the applicant]’s mental health and Christian religion, including:
·Letters (dated 4 October 2016 and 17 March 2021) from [Mr A]. I note that [Mr A] is a Registered General & Psychiatric Nurse with Post Graduate Diplomas in Advanced Clinical Nursing, Mental Health & Health Sciences Research. He is also a member of the Australian Health Practitioner Regulatory Agency (AHPRA number [Number]). I note that [Mr A] also gave witness evidence at the hearing (discussed further below) and has spent hundreds of hours providing clinical care and support to [the applicant] since 2016.
·Letters (dated 20 March 2018 and 4 December 2020) from [Dr B] (a Consultant Psychiatrist) who has treated [the applicant] over several years.
·A letter from [Pastor C] (dated 15 March 2021) of [a Denomination 1] Church in Sydney, attesting to the genuineness of [the applicant]’s Christian faith.
·A letter from [Ms D] (dated 10 December 2020), who knows [the applicant] through her involvement with the church, attesting to the genuineness of his Christian faith.
·A letter from [Mr E] (dated 15 February 2021), a member of [a Denomination 1] church in Melbourne, attesting to the genuineness of [the applicant]’s Christian faith.
I note that in his letter of 4 October 2016, [Mr A] stated that [the applicant] was:
…observed to be preoccupied with paranoia and persecutory themes. He experienced marked difficulty in attending to aspects of his daily living and was grossly cognitively impaired. Not surprising become increasingly withdrawn and isolated himself from others.
I note that in his letter of 17 March 2021, [Mr A] stated that [the applicant]:
…was admitted to [Mental Health Services Provider 1] at [address] [in March] 2018 and placed on a Temporary Treatment Order, however this was revoked before he was discharged. He was recommenced on oral medication - Olanzapine 10mg nocte, Mirtazapine 45mg nocte & Lorazepam 1mg PRN. [The applicant’s] mental state improved, he was actively help seeking and adherent with medication, agreeable to follow up, future focused and wanting to get a job. He even attended a job while on leave from the hospital. He was discharged back to his community team with [Dr B] and [Mr A] (RPN4). Diagnosis- Relapse Psychosis Schizophreniform Disorder, PTSD & Secondary Depression.
I note that in her letter of 4 December 2020, [Dr B] stated that:
…In 2016 [the applicant] developed symptoms of depression and psychosis… He was observed to have depressive symptoms (low mood, anxiety, impaired concentration and motivation, suicidal thoughts) obsessive-compulsive behaviours and psychotic symptoms. Psychotic symptoms include paranoia (about his housemates about the Pakistani government), auditory hallucinations, ideas of reference, thought disorder, withdrawn behaviour and self.
… In September 2017 [the applicant’s] mood and function declined his obsessive-compulsive symptoms worsened. He became homeless. In March 2018 [the applicant] developed psychotic symptoms (paranoia-people from Pakistan coming to kill him, being surveilled electronically, ideas of reference, became withdrawn, and exhibited poor self-care. He was admitted to [Mental Health Services Provider 1] 10 days and treated occasion.
…[the applicant’s] diagnosis is PTSD. He exhibits all the features of this illness as described above.
Evidence from the Tribunal hearing on 19 March 2021
At the hearing, [the applicant] stated that he was born into a large, middle-class Muslim family in Lahore, Pakistan. His father had various business interests including [Product 1] and [Product 2]. He said his grandfather was the patriarch of the family and they were highly religiously observant, adherents to the devout Tablighi Jamaat sect, an Islamic proselytising missionary movement. [The applicant] said that growing up his family would frequent the local mosque multiple times per week. He said that his grandfather was a stern and at times violent man, and that he witnessed his grandfather beating his mother as a child. [The applicant] said that he attended numerous schools as a child, but his education was disrupted several times due to conflicts within the family about whether he should continue regular school, help out with the family business or attend Islamic religious education. He said that he did not complete the middle years of high school because his father forced him to help out in the family’s [Product 1] business but he privately kept up with parts of his study. [The applicant] said that he ultimately re-enrolled in high school but failed his A-levels in [year].
[The applicant] said that growing up his family would frequent the local mosque multiple times per week. He said that he was taught that Muslims could never be friends with non-Muslims, and he gave an example of his family’s attitudes toward non-Muslims stating that in his household they had separate drinking glasses for non-Muslims such as the garbage collector (who was a Christian) in case he requested water. He said that he had always questioned this uncompromising interpretation of the Islamic faith and had often challenged family elders about why they took such a hard-line approach to their religious observance. He said he noticed that the people preaching these conservative doctrines would often fall short in their own lives of the behaviours they advocated for others. [The applicant] said that his attitude towards his faith, and his questioning of the interpretation of it, would often land him in serious trouble with his grandfather and other elders. When asked why he had decided to come to Australia in 2014, [the applicant] said that prior to departing Pakistan he had been working in his father’s [Product 1] shop and studying a diploma on the side. He said that he wanted to escape his repressive family and general life in Pakistan and also wanted to pursue study opportunities in Australia.
There was a church near his house that he regularly walked past, and [the applicant] said that he had developed an interest in first the building itself and then later the Christian religion more generally from a young age. He said that he made a friend who was an Ahmadi Christian and had at one point attended a Christian school. When asked why he would be permitted to attend a Christian school when his family was so devoutly Muslim, [the applicant] stated that his father did not know what school he attended and that his mother had sent him there because of the quality of the education it offered. [The applicant] said that around the age of 17 he had a girlfriend who was Christian and he would attend church with her and became exposed to Christian teachings more formally. He said his grandfather found out about this relationship through village gossip and became very angry about it. [The applicant] claimed that his grandfather beat him severely due to his relationship with a Christian girl. He said his grandfather took him to a madrassa where he was meant to spend 40 days undergoing religious instruction, but [the applicant] said that he escaped after three days and returned home to his mother’s house.
[The applicant] also told of another incident in or around 2013, when he and his brother were stopped on the street by Islamic extremists who were armed with hockey sticks. Although he did not know them, the assailants said that they knew that he had been fraternising with Christians and that he should stop associating with Christians and Christianity and attend the madrassa instead. He said they beat his brother so badly that he subsequently went into a coma and was hospitalised. [The applicant] said that he provided daily care to his brother and nursed him back to health. I note that [the applicant]’s oral evidence at the hearing about these issues was largely consistent with various written submissions on these matters on both Departmental and Tribunal files.
When asked about his faith journey in Australia, [the applicant] said that he was aware that in Australia he had much more freedom to explore his faith and began to read online about Christianity and research possible churches to attend. He attended several churches, including one in [Suburb 1] and one in [Suburb 2], before he was hospitalised for severe mental illness around that time (discussed in further detail below). In 2017 he was introduced to a [church] in [Suburb 3] by a named friend who also introduced him to a pastor named [Mr F]. When asked when he first considered himself to be Christian rather than Muslim, [the applicant] referenced the Bible and said that he was always a question and that God knew him before he was born. He said more formally he considered himself to be a Christian when he first started exploring the faith back in Pakistan. [The applicant] also told of a dream he had when he was seven years old that he now considered to be a Christian religious epiphany.
I questioned [the applicant] about his knowledge of the Christian faith. I note that [the applicant] demonstrated detailed and specific knowledge of various aspects of Christianity. He demonstrated specific knowledge about various Christian festivals and key dates in the Christian calendar, and provided an explanation of his understanding of their basis in scripture. [The applicant] explained that one of the primary things that had attracted him to Christianity from the outset was that in his reckoning, the faith was based on a conception of love and did not prescribe hatred and retribution toward non-believers. [The applicant] stated that he had read the Bible extensively and attended dozens of Bible study meetings with named teachers from the churches he attended. [The applicant] was able to quote various passages from the Bible at the hearing that he liked and/or had resonated with him. When asked why it was the [Denomination 1 Church] that he had decided to join, [the applicant] stated that he had been looking for community, had met [Pastor C] (who was also a witness at the hearing, discussed further below) and after faith-based discussions with him had decided to pursue this branch of the faith.
When asked how his conversion to the Christian faith had changed the way he lived his life, [the applicant] described no longer feeling continually fearful as he had when he was a Muslim. He spoke of the connection he felt with Christ and the benefits he gained from being part of the church. I note that although [the applicant] claimed to consider himself to be Christian for several years prior, he was formally baptised into the Christian faith [in] March 2019. When asked why he had waited so long to be formally baptised, given his previous statements relating to his religious conversion years prior, [the applicant] had some difficulty explaining this delay. [The applicant] stated that he had become severely mentally ill in the period preceding his baptism, and this had delayed his formal initiation into the church and the Christian faith. I note that evidence relating to [the applicant]’s mental health conditions is consistent with this explanation.

When asked whether he feared harm if he were to return to Pakistan in the near future, [the applicant] said that he did and that his main fear was that if his family found out about his religious conversion from Islam to Christianity they would kill him if he returned to Pakistan. He said that other than his mother (who he had told in vague terms that he was no longer a Muslim in 2015) nobody else in his family knew of his religious conversion. When asked why he could not return to Pakistan and live safely like many Christians did there, [the applicant] said that the difference was that as a convert and apostate, he would be a ‘magnet’ for extremists and would be treated much more harshly than other Christians in Pakistan who were born to the faith. [The applicant] stated that ‘every Muslim on the planet is a threat to me’.
The Tribunal heard oral witness evidence from [Pastor C] via phone. [Pastor C] told the Tribunal that he had been introduced to [the applicant] by a Pakistani member of his congregation in Sydney. He said that [the applicant] had visited his parish in Sydney and had had discussions with him seeking to better understand the central tenets of the Christian faith, and to move away from Islam to Christianity. [Pastor C] stated that he had gone through [the applicant]’s background with him at length and sought to understand why he wanted to convert. He said that [the applicant] demonstrated an understanding of Christianity from the outset and in his view this understanding of the faith had grown considerably in the intervening years. He said that [the applicant] was very genuine in the story he presented; his life experiences that had led him to this point and his explanations of why he wanted to formally leave the Islamic faith. He said that he had been a pastor for more than 25 years and could recognise people that had a Christian conviction that was heartfelt, and he believed [the applicant] was in this category. When I asked [Pastor C] if he thought there was any chance that [the applicant]’s conversion could be a cynical exercise to secure a migration outcome, he said that although he had experience with these sorts of conversions in the past, he did not believe that this was the motivation in [the applicant]’s case. He cited some reasons for this belief, including [the applicant]’s knowledge of Christian scripture, his ability to quote it, the Christian lifestyle he believed that [the applicant] lead, and the fact that [the applicant] had been an active participant in the church, averaging two to three times per month over the last six months, in online Bible study classes and church activities.
The Tribunal also heard oral evidence from [Mr A] at the hearing. [Mr A] told the Tribunal of his history in providing care for [the applicant] since 2016. [Mr A] stated that he’d had hundreds of hours of contact with [the applicant] over the last five years, sometimes several times per week during intensive periods of treatment. [Mr A] provided the Tribunal with an overview of [the applicant]’s medical history including his diagnoses, treatment, details relating to his hospitalisation in 2017, and medications [the applicant] had been prescribed. When asked, [Mr A] said that he had become aware of [the applicant]’s faith journey and Christian conversion at the beginning of 2017, and outlined the ways in which he thought this issue has contributed to [the applicant]’s mental health issues. I accept [Mr A]’s evidence and found him to be a candid, sincere and, ultimately, highly credible witness.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Findings and reasons
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons enumerated in the Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of Pakistan, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Is the applicant a genuine Christian convert?
I accept that [the applicant] was born and raised a Muslim in Pakistan, in a family that included highly religiously observant members, particularly [the applicant]’s grandfather. I accept that [the applicant]’s family members remain devout adherents to the Islamic faith. I have considered [the applicant]’s claims to have explored Christianity in Pakistan in his adolescence. Having read [the applicant]’s written submissions relating to this issue, and having heard his consistent and credible evidence on his journey to Christianity, I accept that [the applicant] developed an interest in Christianity from adolescence through Christian friends and exposure to the religion in Pakistan. I accept that he sought to further explore his Christian faith when he had the freedom and the opportunity to do so after arriving in Australia. I accept [the applicant]’s detailed reasons for why he wanted to renounce his Islamic faith due to his experiences of a strict interpretation of it that he was exposed to in Pakistan through devout members of his family.
In terms of his religious practice in Australia, I accept that [the applicant] had attended various churches in Melbourne since arriving in Australia and was baptised [in] March 2019 by [Pastor C] at [a named Church] in Sydney. As outlined above, I have had regard to a letter, dated 15 March 2021, written in support of [the applicant] from [Pastor C] that comprehensively outlines why he believes [the applicant]’s conversion to Christianity is sincere and genuine, and the various processes [the applicant] went through with the church preceding his formal baptism. I have also had regard to letters from [Ms D] and [Mr E], other church members, who both attest to the genuineness of [the applicant]’s Christian faith and the journey he has taken to it. As noted above, I also had the benefit of hearing the oral testimony of [Pastor C] at the hearing who gave detailed and credible reasons why he thought [the applicant]’s Christian conversion to be genuine. I accept that [the applicant] has attended various churches on numerous occasions and has completed various educational activities associated with his conversion and consistent with somebody seeking to learn more about their new faith. I also accept that [the applicant]’s formal baptism was delayed due to mental health issues he suffered during this period in Australia, which included a period of hospitalisation in a psychiatric facility in 2017.
I acknowledge that the Tribunal is not an arbiter of doctrine. I understand that people can follow a faith for various reasons and that it is not necessary for an applicant to possess a detailed knowledge of its central tenets. As outlined above, at the Tribunal hearing [the applicant] was asked a range of questions about his religious beliefs and practices in Pakistan and Australia, including reasons why he decided to convert and how his new faith has impacted his life. These questions were intended to give [the applicant] the opportunity to demonstrate aspects of his knowledge of the Christian faith and the progression of his religious belief to the point of conversion. As outlined above, [the applicant] demonstrated significant knowledge of various aspects of Christianity and spoke passionately about the reasons why he had decided to convert and how his Christian faith had impacted on his life. I note and accept that [the applicant] exhibited detailed knowledge of specific aspects of his Christian faith, provided credible reasons why he had chosen to convert to Christianity from Islam and that he has held himself out to be a Christian in Australia.
Accordingly, I accept [the applicant] is a genuine Christian convert from Islam. I accept he is a practising Christian and would continue to practice his Christian faith if returned to Pakistan, if not for fear of persecution in doing so.
Are the applicant’s fears as a Christian convert well founded?
In order to determine whether [the applicant] faces a well-founded fear of persecution from the community, his family, extremists or others in Pakistan as a result of his Christian faith and/or conversion to it, I have had regard to various sources of country information concerning the situation facing Christians and/or Christian converts in Pakistan. This includes information from DFAT’s country information report on Pakistan and a Country Policy and Information report from the UK Home Office on Christians and Christian converts in Pakistan.
The DFAT country information report on Pakistan 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] I note that there have been numerous, documented incidents of communal violence carried out against Christians accused of blasphemy. The DFAT report states[2]:
Communal violence also often targets those accused of blasphemy. In November 2014, a mob burned a Christian couple to death in the brick kiln where they worked as bonded labourers after they were falsely accused of throwing out pages of the Quran with their household rubbish. In November 2016, a military anti-terror court sentenced five people to death for their murder. In July 2014, an angry mob burnt several houses and vehicles in Gujranwala, eastern Punjab, killing an Ahmadi woman and two young girls, and injuring eight others. An allegedly blasphemous social media post by an Ahmadi reportedly triggered the incident.
[1] DFAT Country Information Report, Pakistan, 20 February 2019, section 3.81
[2] DFAT Country Information Report, Pakistan, 20 February 2019, section 3.85
In a recent report titled ‘Pakistan: Christians and Christian converts’,[3] the UK Home Office stated that while there is no law against religious conversion in Pakistan, renouncing Islam (apostasy) is widely considered a form of blasphemy;[4] 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.[5]
[3] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021, Pakistan: country policy and information notes - GOV.UK (
[4] Ibid at 2.5.32
[5] Ibid at 2.5.33
With regard to societal treatment of Christian converts, the UK Home Office report stated 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.[6] 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.[7] 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.[8]
[6] Ibid at 2.5.34
[7] Ibid at 2.5.34
[8] Ibid at 2.5.37
The UK Home Office report stated 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 stated that ‘attacks on those who have converted can re-occur years or even decades after they have changed religion’.[9] 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.[10]
[9] 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
[10] 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 UK Home Office report), the British High Commission in Islamabad stated 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 stated 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.[11]
[11] 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.[12] 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:
Militant groups target Christian individuals, churches, residences or other places where Christians congregate. A suicide bomber attacked a park in Lahore on Easter Sunday in 2016, killing 74 people—including many women and children. Jamaatul Ahrar claimed responsibility for the attack, and said it deliberately targeted Christians.[13]
…
DFAT assesses that Christians face a low level of official discrimination and a moderate level of societal discrimination. DFAT further assesses that Christians face a moderate risk of societal violence and sectarian violence. DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy disproportionately affect religious minorities, including Christians, in Pakistan.[14]
[12] For example, DFAT County 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
[13] DFAT County Information Report, Pakistan, 20 February 2019 at 3.136 to 3.143
[14] DFAT County Information Report, Pakistan, 20 February 2019 at 3.136 to 3.143
Taking into account such country information about 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, I accept that if [the applicant] were to return to Pakistan and attempt to practice 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 Muslim community and possibly members of extremists groups. If this were the case, I accept 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. I accept 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.
Having considered the available country information and [the applicant]’s specific circumstances, particularly (as detailed above) the information relating to the treatment of Christian converts from Islam, I am satisfied that in these circumstances [the applicant] would face a real chance of serious harm from extremists – groups and/or individuals (that may include members of his own family) – who would consider him an apostate, if he were to return to Lahore 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.5J(4)(b) of the Act in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also consider that [the applicant]’s religion and his membership of a particular social group of Christian converts from Islam is the essential and significant reason for the persecution he fears, as required by s.5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s.5J(4)(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.

Pursuant to 5J(6), I am satisfied that the reasons [the applicant] faces a well-founded fear of persecution relate to behaviours and/or conduct that was not engaged in by [the applicant] in Australia for the purpose of strengthening his claim to be a refugee.
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.
I am satisfied that [the applicant], as a citizen of Pakistan, has the right to relocate within Pakistan. I note 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.[15]
[15] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453
I have considered if [the applicant] faces a real chance of persecution in all areas of Pakistan as required by s.5J(1)(c) of the Act. As noted, [the applicant] originates from Lahore, where he lived prior to coming to Australia in 2014. This is where his siblings and parents still live. I have 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 Lahore relates to all areas of Pakistan.
In considering [the applicant]’s circumstances and the ‘reasonableness’ of him relocating within Pakistan, I have considered DFAT’s assessment that ‘groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country’.[16] I note also the relevant section of the above referenced UK Home Office 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’.[17]
[16] DFAT County Information Report, Pakistan, 20 February 2019, at 5.32
[17] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
As noted earlier, [the applicant]’s passport and presumably his ID card indicate he is Muslim. I do not consider it would be possible for [the applicant] to move away from Lahore to another area of the country and not reveal his faith or conversion as I accept that if [the applicant] returned to Pakistan he would wish to continue to observe and practice 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 threats of harm from non-state actors throughout Pakistan. For these reasons I am 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, his family and/or extremists.
Vulnerability
I give strong weight to the multiple letters/reports written by [Dr B] and [Mr A] (outlined above) spanning several years of regular treatment of [the applicant] and, in particular, the assessment from [Dr B] that [the applicant] has diagnosed PTSD among other psychiatric disorders. I note also that in 2018 [the applicant]’s psychotic symptoms were so acute that he required extended hospitalisation in a psychiatric facility. I note that some of this information is new and was not before the Department at the time of the delegate’s decision. I accept that [the applicant] has significant, diagnosed mental illness(es) and that this would act to considerably heighten his vulnerability to persecution if he were to return to Pakistan. I find that [the applicant]’s mental illness(es) would likely expose him to a greater risk of harm in the future, including for the reasons that he may be incapable at certain times, owing to his mental illness, of acting to avoid people and/or situations that may place him at greater risk.
Whether the applicant could take reasonable steps to modify his behaviour
I note that s.5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case I am satisfied that the modification would require [the applicant] to alter his religious beliefs, including by renouncing a religious conversion, or conceal his true religious beliefs, or cease to be involved in the practice of his faith as per s.5J(3)(c)(i). Therefore s.5J(3) does not apply and I am satisfied [the applicant]’s fears of persecution for the reasons set out above are well founded.
The availability of effective protection measures
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2) of the Act. I have considered if effective protection measures are available to [the applicant] in Lahore as required by s.5LA. The harm that [the applicant] fears from community members, his family and/or extremists is from non-state actors and he claims that the Pakistani authorities will not protect him from that harm.
It is submitted that effective protection measures are not available in [the applicant]’s case. Due to weak governance and instability with respect to the country’s security situation the authorities are unable to prevent atrocities from occurring against its Christian minority community.
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 UK Home Office in their recent report on Christians and Christian converts note 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.[18]
[18] 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 aforementioned UK Home Office 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 stated 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’[19]
[19] 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 UK Home Office 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 (MoRH) 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.[20]
[20] ‘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 advise 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’.[21]
[21] DFAT Country Information Report, Pakistan 20 February 2019 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’.[22] They also state 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 state 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.[23]
[22] Ibid at 5.11
[23] 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, I am 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 am I satisfied that effective protection measures (as per s.5LA) provided by the state (or any other entity) are available to [the applicant] in Lahore. Based on this country information, I find that [the applicant] would not be able to access effective protection if returned to Pakistan for the purposes of s.5LA(2).
Conclusion
Considering [the applicant]’s particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from the community, his family and/or extremists, if he returns to his home in Lahore, Pakistan. I am satisfied that the real chance of serious harm [the applicant] will face if he returns to his home area in Lahore will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find 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’. I find that [the applicant]’s particular risk of serious harm is amplified by his diagnosed mental illness(es).
For the reasons given above, I am 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.
Scott Clarey
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.
…

[2021] AATA 1642

3 May 2021

Key Legal Topics

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Natural Justice

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