1906821 (Refugee)

1906821 (Refugee) [2022] AATA 796 (31 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906821
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:31 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 March 2022 at 12:19pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm because of land dispute – rumour of blasphemy spread by opponents and death penalty announced by imam – relocation – authenticity of newspaper article claimed to be about applicant – no other corroborating evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of Pakistan. He arrived in Australia on a one-month tourist visa [in] January 2018. He applied for the visa on 3 February 2018. The delegate refused to grant the visa on 15 March 2019. [The applicant] then sought merits review by this Tribunal and the matter was constituted to me. I find that the review application is valid.
For the purposes of this review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision in this matter. That decision summarises oral evidence given by [the applicant] and also describes issues the delegate found to be critical to the primary decision. The same record also contains citations of independent country information relied upon by the delegate.
[The applicant] appeared before the Tribunal on 25 March 2022 to give evidence and present arguments. The hearing was held as telephone hearing in view of heath protocols introduced during the ongoing COVID-19 pandemic. I exercised the Tribunal’s discretion to conduct the hearing by telephone determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant and the interpreter. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding undue delay to the matter were the hearing not to be conducted by video. I checked with [the applicant] to ensure that he had no reservations about proceeding in this way. Although having expressed misgivings prior to the hearing, he indicated that he had had a fair opportunity to give evidence and present arguments. On the whole, I am satisfied that he was given that opportunity.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu-English medium.
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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 [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 decision under review should be affirmed.
Claims to the Department of Home Affairs (the Department)
In his primary application, [the applicant] claimed to be married with a daughter. He claimed to have completed eight years of schooling. He claimed to have resided in a named village in the environs of Attock city, Punjab, about 50km from Rawalpindi. He claimed that he lived there all his life except for when he worked abroad in [Country] from May 2021 to June 2014, November 2014 to September 2015 and November 2015 to March 2016. He claimed to have worked as [an Occupation] in his home village from March 2016 until May 2017. He said he was unemployed from May 2017 until February 2018, a month after he arrived in Australia [in] January 2018.
[The applicant] claimed he could return to Pakistan because:
I left Pakistan because some powerful people tried to take my land and house away from me when I returned to Pakistan from [Country] in 2016. I took measurable steps to prevent this from happening. And then later on in May 2017 these people spread the rumour about me saying that I [have] been deliberately respectful to the Prophet Muhammad. This was just a rumour but it spread all around the area and the Imam of the mosque announced a death penalty for me and openly announced that I should be killed at first sight. I firmly believe in God and his Prophet and I never showed any disrespect to the Prophet. But after the Imam announced a death penalty for me, I wasn't secure anywhere so I had to left [sic.] my family. And moved around different areas to seek some help but I didn't got [sic.] any help from anyone even the police. Because I was in fear of getting killed anywhere by anyone. After moving around the country, I didn't find any safe place for me to live. Going to [Country] for work wasn't a safe option as it is an Islamic country and I could be killed there…
I experienced leaving my house and everything and fearing to death by everyone. Because a death penalty was announced in Mosque for me…
I tried to seek help from government and police but I was refused any help as anyone helping could also get killed…
I moved from North of Pakistan to all the way to South of Pakistan till Karachi. I spent time moving around the whole country in small villages to big cities but everywhere I was identified and was announced to be killed at first sight so I kept hiding around the country…
I would get killed by anyone anywhere. I could even be killed at airport…
I would get killed by anyone anywhere. There is no safe place for me in Pakistan even I am in danger from Police Officials to get killed…
Authorities won't help me as they could also get killed just to help me. Even the Governor of Punjab Mr. Salman Taseer was murdered in 2011 for the same reason despite being a governor and being in high security all of the time, he was killed by one of his security guards…
I won't be able to relocate as I already tried to move to different areas around the country but ended up being identified and ran from everywhere to save my life.
In support of his claims, [the applicant] submitted to the Department a photocopy of what appeared to be a newspaper article featuring a passport-style photograph of him and a short text relating to the alleged fatwa:
The Noble Clerics Issue Fatwa Against [the applicant] of [Village]
[The applicant] set Quranic verses and pages on fire and committed blasphemy which has caused a great wave anger and grief in the area
Rawalpindi (City Reporter) Clerics from all schools of thought have said that [the applicant] son of [name deleted], who is a resident of [Village], is liable to be killed. Approximately 5 months ago, this person insulted the prophet as well as the Quran, and burned pages of the Quran. As a result of this, a great wave of anger and grief is found in the area. Local noble clerics have declared that he must be banished and is liable to be killed. People have embarked on serious protests. It has been reported that [the applicant] has fled the country and he is in hiding in another country.
The delegate gave no weight to the article as, in its apparently cut-out, standalone form, it could not be linked to any particular newspaper, location or date, and also on the basis of independent country information advising that fraudulent documents are easily obtained in Pakistan for money. The delegate went so far as to conclude, erroneously in my view, that as a consequence of giving no weight to the purported article he was not satisfied that a death penalty was imposed on [the applicant] by his local mullah over the alleged charge of blasphemy. I consider this somewhat of an error not least because it appears that negative weight was indeed attributed to the article in the absence of a reasoned finding that it was itself fraudulent. I think it is more reasonable be cautious in concluding an event did not occur because a single documentary reference to it was capable, and nothing more, of attracting suspicion.
Evidence to the Tribunal
At the hearing, I asked [the applicant] to describe the precise nature of his tenure in the land illegally occupied, the locality in which the fatwa was issued, the details of his various attempts to relocate and some specifics relating to the purported newspaper article.
[The applicant] told me that the land in question was his alone and that he had legal title to it. He said it was bequeathed to him by his late father. He said his brother also inherited a similar plot of land that was not occupied by anyone, perhaps because it was not adjacent to a road as his was. He said he engaged the local village “landlord” to help expel the people found, upon his last return from [Country] in 2016, to be occupying it. He said the landlord was influential, but I found it hard to get him to explain satisfactorily how a so-called “landlord” was relevant in a matter involving land in which he, [the applicant], was not the tenant but the legal proprietor. I asked [the applicant] to explain how a local landlord had any stake in the matter and, from his description, he indicated that he obtained the support of a friendly local man of influence, who was influential due to his hereditary place in Pakistan’s traditional feudal landlord system.[1] From what I could gather the landlord did not lease the contested land in this case, or even own it, but still purportedly had the standing in the village to solve the dispute that [the applicant] described due to his influence.
[1] See “Feudalism in Pakistan,” The Friday Times, 15 July 2015,
[The applicant] claimed that after he succeeded, with the landlord’s help, in expelling the illegal occupants from his land they told the lie about him in the following year to the local mullah, who accepted it at face value and issued the fatwa. I asked if the fatwa was written down and he said the mullah only ever announced it over a megaphone. I asked why the mullah merely accepted the accusation at face value and he now said this happened because his accusers, the people who had occupied his land, were influential people. He thus described them at once as being influential enough to persuade the mullah though not as influential as the local landlord. I questioned how the mullah did not suspect the accusation to be false given the local history of the accusers having occupied his land illegally. He said the mullah only listened to the accusers. I asked if the landlord intervened and he said he did not because this was a religious issue. He said the landlord said he would rather help him later.
I put to [the applicant] that according to independent country information, false claims about blasphemy are a notorious scam in Pakistan, used to settle scores that have nothing to do with offending Islam. In response, [the applicant] said this is not true. He said that blasphemy accusations are rare in Pakistan.
The Department of Foreign Affairs (DFAT) reports that blasphemy accusations are widely publicised, are tried in state courts and are increasing in number, including false or ultimately unfounded cases:
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.
I asked [the applicant] to describe the extent to which his alleged blasphemy had been recorded and publicised, and he referred me to the newspaper article.
[The applicant] had submitted, prior to the hearing, a photocopy of what appeared to be the full front page of a newspaper published in Urdu, ostensibly [in] October 2017. The name of the newspaper appears to be [Newspaper 1]. I note from an independent source that this paper is published in Islamabad, Karachi, Lahore and [Country][2]. Situated within the layout is the same notice previously cut out and sent along with translation to the delegate. I discussed this newspaper and the article with [the applicant]. In particular, I asked [the applicant] how the article came to appear as “news” in a newspaper published some five months after the event it described. In response, [the applicant] just repeated a sequence of claims already made in his original application. He described efforts made on his behalf by the local village “landlord” to help him leave Pakistan after the article was published, but none of this addressed my question on its point. When I asked again why the article took five months to appear as front-page news, [the applicant] said he did not know because he is “illiterate.” This response did not appear to clarify anything. In any event, I checked [the applicant]’s original protection visa application in which he said he could speak, read and write Urdu. I mentioned this to him at the hearing, whereupon he said he could only write a little. On the evidence before me I do not accept that [the applicant] is illiterate and, as noted, neither this claim nor the one about the “landlord” helped me to understand why it took five months for the news about the fatwa to be published given the public interest, described in the article, about the fatwa.
[2] [Source deleted].

I asked [the applicant] if he knew where this edition of the newspaper had been published, the better to estimate its circulation and reach throughout the community. He said he did not know. This struck me as odd, given that it was purportedly telling its readers, however many or few they might be, that he was liable to be killed. [The applicant] then said that as far as he knew it was published “everywhere.” All in all, though, [the applicant] showed little interest for a man in his alleged predicament as to where the newspaper was published and how many people it might reach.
I noted that the article did not appear to help readers know even where his village, though named, was located. In response, [the applicant] said any reader would be able to enquire where his village was.
I asked [the applicant] about the photograph accompanying the article, which had the appearance of being the kind of photograph one might have made for a passport, driver licence or ID card of some kind. I was interested to know if he could tell why he originally had that photograph made and whether he could help me understand how it came into the hands of the author of the article ostensibly appearing on the front page of [October] (?) 2017 edition of the [Newspaper 1]. I noted that it was not the same photograph that appeared in [the applicant]’s current passport, issued in 2013 and valid to 2023. It was also not the same photograph appearing in his most recent national ID card, and yet it appeared to be the kind that would be made, and authenticated, for personal use in a document of identity. I asked [the applicant] a number of times if he could recall why he had had this photograph made and he repeatedly responded that it did not know how it had been obtained for use in the newspaper. Repeated attempts to ask [the applicant] to focus on the original intended purpose of the photograph were unsuccessful in this way. Eventually, He said that he may have had the photograph made in [Country] when his passport was due to expire there, but this did not appear to be possible because his current passport, issued in Pakistan, had remained valid throughout his time in [Country]. I asked [the applicant] how a photograph taken for personal use in [Country] had come into the hands of a newspaper purportedly published in Pakistan and he said he did not know. I put to him that it seemed hard to accept that he needed a new passport while he was in [Country] or that a photograph of him made there would have been obtained in Pakistan without his permission. In reply, [the applicant] said he did not know how it had been obtained for use in the newspaper article.
None of [the applicant]’s evidence suggests that the purported blasphemy allegations against him have ever, in the last five years, come to the attention of state prosecutors or courts, whereas the information from DFAT indicates that they likely would do, arguably not least after appearing in a newspaper that, he said, is circulated everywhere in Pakistan (even though he had evidently not ascertained where it was originally published). In his evidence, there is the fatwa issued over the megaphone and, five months after that, just this one notice in a newspaper, and nothing in the four and a half years since. Whereas this seemed problematic for [the applicant]’s case, he essentially argued that this was normal.
I put to [the applicant] that it would reportedly[3] be easy for part of the content of a newspaper front page, like the one appearing in photocopy form before me, to be contrived in exchange for money in Pakistan. In response, [the applicant] referred to the delegate who said had been against him. He also said that he is “illiterate.” Again, according to his protection visa application, this is not true. [The applicant] then said he can speak and read Urdu but only write it “a little”. This response struck me, meanwhile, as being irrelevant to the point of the question, and therefore unsatisfactory.
[3] “Prevalence of Fraud,” paragraphs 5.52 To 5.54, DFAT Country Information Report: Pakistan, 25 January 2022
I asked [the applicant] about his claim to have hidden in different parts of Pakistan in 2017, particularly since he had claimed one residential address only in Pakistan the whole time he had ever lived there. I reminded him that the delegate questioned the consistency of the information he had provided about where he had lived in that time and asked him of he could provide any evidence supporting his claim about having resided outside of his home village in 2017. [The applicant] indicated that he could provide no evidence of having lived in other parts of Pakistan. I asked me if he could state any of the addresses at which he had resided and he said he could not because he never knew any of them in the first place. I asked him how that position could be plausible, as he would have needed to find these places and travel back to them on any occasions on which he left them. In reply, he said he always stayed in small residences. This explanation did not strike me as helpful in the circumstances.
I asked [the applicant] what prompted him each time to change locations and he said he was prompted by the fear of being identified. He then confirmed that he was never actually identified or located. I then put to him that in his original protection visa application he had claimed that he moved from one place to another whenever he was identified with concomitant orders issued to have him killed. In reply, he said that he had meant to say in his original application that because the newspaper article was published everywhere it was impossible for him to conceal his identity. This explanation struck me as odd not least because there is no mention of the newspaper in the original application whatsoever.
I drew [the applicant]’s attention to his claim to the effect that he might even be killed at the airport on his return to Pakistan, pointing to the obvious fact that he was not killed at the airport on the occasion of his departure. In response he said he departed Islamabad airport secretly. This was a new claim that [the applicant] had not even suggested in his original application, where he had declared that he departed Pakistan “legally.” I questioned this new information and [the applicant] said that the landlord intervened. Asked to explain what he meant, he suggested that the so-called landlord took care of his visitor visa application and everything else, apparently from far-off Lahore. This information was very vague. Ultimately, [the applicant] did not provide any plausible detail as to how he was able to avoid being stopped at Islamabad airport in circumstances where, as he claimed, he was liable to be intercepted.
I put to [the applicant] that according to his evidence, he overcame or avoided obstacles and adversity because of the influential landlord and at the same time failed to overcome them because in the face of those the landlord had no influence. I indicated that I was not confident that I had a very consistent impression of the landlord in this case. In reply, he said that the landlord was able to be influential in all matters except religious ones.
I asked [the applicant] why he appeared not to lodge his original protection visa application until his visitor visa was about to expire. In reply, he started to talk about how the village landlord had taken care of all his arrangements to leave Pakistan. I put to him that his response did not appear to address the point of my question, and then repeated the latter. I asked him again about the apparent delay in lodging the present application and he said that he spent his first month here looking for people to help him.
[The applicant] told me that the landlord also visited Australia at the same time as him. He claimed the landlord flew out of Lahore to avoid being linked to him. He said the landlord came here for a festival and returned to Pakistan. He also said the landlord later died of a heart attack whilst driving a car, and indicated that the cause of the landlord’s death was not relevant to his own claims.
During the latter part of the hearing I raised the question of witnesses to the fatwa, although more specifically I relation to the text of the purported newspaper article. In any event, [the applicant] did not suggest that he could present any witnesses to corroborate his claims about the fatwa having been issued.
As noted there is no evidence of the alleged blasphemy having been handled by the police, prosecutors or courts, in circumstances where it is reportedly common for such matters progress.
I asked [the applicant] if he had any ore claims or matters to discuss. In response, he referred to his wife and daughter, implicitly referring to their suffering in the event of his being killed.
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.[4] 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.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] 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.[6] 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.[7]
[6] 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
[7] Sun v MIBP [2016] FCAFC 52 at [69].
[The applicant], a Muslim, has presented claims relating to an alleged act of insulting Islam. They arise from an alleged single act on a single occasion allegedly leading to a fatwa. The alleged perpetrators are also Muslims. The harm identified in this case, being execution, certainly meets the threshold of persecution. However, the evidence in this case does not clearly support the position that the direct agents of persecution in this matter would persecute [the applicant] for reasons of his religion: the alleged single act of insulting Islam is the essential and significant causal factor in this case.
A closer nexus with s.5J(1)(a) in this case would appear to be “membership of a particular social group” tolerably described, for the purposes of this matter, as “blasphemers in Pakistan,” alleged and/or actual. [The applicant] claims that, as a member of this group, he can neither safely relocate within Pakistan nor avail himself of effective state protection.
In short, whereas I accept that [the applicant] may have had to remove trespassers from his farmland in 2016, calling in influential persons in his village to help him, I find that that matter was resolved in 2016 and that, on the evidence before me, I accept little else that he has claimed.
My findings in this matter are cumulative.
Dealing firstly with the only material submitted in support of the claim about the blasphemy, I make the following cumulative findings in relation to the purported newspaper article.
The timing of the article concerns me, as it purports to appear some five months after the alleged fatwa was issued for no reason.
Whereas the article refers to a consensus of Muslim clerics endorsing the fatwa, there is no evidence of the matter being prosecuted in Pakistan’s courts, as is evidently the common practice in such matters. There is no evidence of accusers trying to engage the authorities given the failure to find and kill [the applicant] in the preceding five months. There is no interest in the authorities taking any interest in this matter at all, which concerns me in the claimed circumstances. I have given some cumulative weight to these concerns.
[The applicant]’s suggestion that he had the photograph made in [Country] for a replacement passport struck me as an improvised claim, given that he did not need a new passport the whole time he was there, and I find the presence of improvisation in his evidence here concerning, as it forms a pattern with what I find to be other instances of improvisation, such as his claims about where he resided in 2017. The photograph in the article also concerns me as it was evidently made by [the applicant] for the purposes of obtaining some kind of personal identity documentation that was apparently not needed or obtained, and therefore would normally have remained with him. On the evidence before me, it is hard to conceive how he and the photograph became separated without his consent. My overall impression is that [the applicant] was concealing information about the provenance of the article with that particular photograph.
The text of the article looks like text for a local newspaper, and yet [Newspaper 1] is a national and international journal. Whereas omission of details in the article as to the location of [the applicant]’s named village, to assist readers nationwide, is not overwhelmingly significant on its own, because I cannot know how attentive to detail a journalist or editor in such an instance might be, I nevertheless give some cumulative negative weight to this omission.
In addition to all this, [the applicant] appears not to have ever paid close attention to where the purported newspaper was first published, as one might reasonably expect of someone trying to hide in different parts of Pakistan at the time. Meanwhile, the article says that [the applicant] is believed to have fled abroad, which [the applicant] suggests is consistent with his claim about having gone into hiding in different parts of Pakistan; however, [the applicant]’s claims about hiding here and there are so problematic, as discussed below, that I am left concluding that he remained in his home village, as initially claimed, until he left Pakistan in January 2018. This leads me to find that it would be quite far-fetched for a genuine article to report that he had fled abroad while [the applicant] continued to reside in the village named therein, amongst his alleged accusers and the mullah who ordered his execution.
Adding to all of this is the independent evidence of the ease with which documents can be fabricated in Pakistan for a price. [The applicant]’s response to this position was highly unsatisfactory. He repeatedly addressed concerns about the quality of his evidence by saying he is “illiterate” which, on other of his evidence, he is not.
On the evidence overall, I do not accept that the newspaper article is genuine, or that it was ever even published in a real newspaper.
Arguably, a correct approach hence is for the Tribunal to ask itself whether [the applicant] might yet have submitted unreliable evidence of a true fact; after all, he indicated that the original fatwa was verbally broadcast, meaning that documentary evidence of the fact would be very hard to obtain, particularly by the target individual lying low and out of sight. However, as references to [the applicant]’s claims about hiding in different parts of Pakistan and about being illiterate already indicate, I am not satisfied that he has been at all truthful about the alleged fatwa.
I do not accept [the applicant]’s evidence about being unable to provide evidence supporting his claims to have resided in various cities in Pakistan throughout 2017 on the grounds that he lived in “small residences” the addresses of which he never took any mental or other note.
I draw negative inferences from [the applicant]’s recourse to saying he was illiterate when asked to explain some of the incongruities in his evidence.
I find it somewhat far-fetched that the local village mullah would have issued the alleged fatwa in the claimed circumstances. [The applicant]’s village is a very small place, according to Google Maps, so small that it would be extremely hard for everyone not to know what everyone else was doing. I do not accept [the applicant]’s suggestion that the mullah did not try to investigate before ordering the death of one of his neighbours.
I am particularly concerned that a fatwa of the kind described by [the applicant] has evidently never come to the interest of authorities, prosecutors and the courts in Pakistan.
[The applicant] has given arguably conflicting evidence about the ease with which he was able to depart Pakistan whilst claiming that he could be killed “at the airport.” His efforts to describe the so-called “landlord” fixing everything for him was highly unconvincing. In fact, my overall impression on the evidence before me is that [the applicant], when confronted with problems I his evidence, tended to rely disingenuously on unseen acts of intercession by this influential “landlord,” the effect being that his claims have an air of unreality to them. However, I am prepared to accept that a person of such influence at the village level might have helped [the applicant] to expel his trespassers in 2016.
On the evidence before me, I am not satisfied that any fatwa has been issued against [the applicant] or that any individuals or institutions in Pakistan believe or infer one to have been issued, let alone that any party in Pakistan intends to carry out such an order or imputed order. I find that to a significant extent [the applicant]’s substantive claims in this matter are false and unreliable.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Pakistan 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 are tainted by lack of credibility and have failed to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicant’s refugee claims can no more succeed as complementary protection claims.
Having considered all of the evidence before me 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.
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 796

31 March 2022

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