2016596 (Refugee) - [2025] ARTA 1706

2016596 (Refugee) [2025] ARTA 1706 (4 July 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Hameed Ahmad (MARN: 1912503)
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2016596
Tribunal:General Member P Millar
Date:4 July 2025

Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that both of the applicants meet s 36(2)(a).

Statement made on 04 July 2025 at 4:30pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Ahmadi – not free to practise religion – targeted with harassment, discrimination and derogatory names – property vandalised and robbed – threats of harm – a criminal offence for Ahmadis to pose as Muslims, placing them at risk of blasphemy charges – people accused of blasphemy can face arrest, detention and extrajudicial killing – age and medical conditions make them frail and vulnerable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Appellant S395/2002 v MIMA (2003) 216 CLR 472
FCS17 v MHA (2020) 276 FCR 644
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 October 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who the Tribunal finds to be nationals of Pakistan, applied for the visas on 6 October 2020.[1] The applicants appeared before the Tribunal on 15 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Child A], who is the applicants’ [adult child]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The second named applicant gave evidence in Punjabi, a language also spoken by the interpreter. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
[1] The Tribunal’s findings on citizenship are based on the Pakistan passports produced by the applicants at the hearing.
Criteria for 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2016596 (Refugee) [2025] ARTA 1706
Case: [2025] ARTA 1706
Decision Date: 4 July 2025

CaseChat Overview and Summary

The applicants, an Ahmadi couple from Pakistan, sought a protection visa from Australia. The couple argued that they faced severe persecution in Pakistan due to their religious beliefs, including harassment, discrimination, property damage, and threats of violence. The Tribunal was required to determine whether the applicants met the criteria for a protection visa under the Migration Act, specifically whether they were refugees with a well-founded fear of persecution on the grounds of religion. The court considered the applicants' evidence, which included detailed accounts of their experiences in Pakistan, alongside country information assessments and guidelines from the Department of Home Affairs and the Department of Foreign Affairs and Trade.

The Tribunal concluded that the applicants' experiences in Pakistan, including the inability to freely practise their religion, harassment, threats, and property damage, constituted serious harm and systematic and discriminatory conduct. The court found that the applicants had a well-founded fear of persecution due to their Ahmadi faith, which is not tolerated in Pakistan. Furthermore, the Tribunal noted that the applicants' age and medical conditions made them particularly vulnerable. The court found that the applicants met the criteria for a protection visa as they were persons in respect of whom Australia has protection obligations.

The Tribunal set aside the decisions under review and remitted the applicants' protection visa applications for reconsideration, finding that the applicants satisfied the criterion in section 36(2)(a) of the Migration Act. The Tribunal directed that the applicants meet the criterion that Australia has protection obligations towards them because they are refugees. The decision underscores the importance of considering individual circumstances, including vulnerability, in protection visa applications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.[2][2] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025.CONSIDERATION OF CLAIMS AND EVIDENCE The first named applicant (“the applicant”) is [an age-]year old male. The second named applicant is his wife, [an age-]year old woman. According to their evidence to the Department and the Tribunal, the applicants claim protection on the ground that they are Ahmadi.[3] At the Tribunal hearing, the applicants gave the following evidence on which their protection claims are based.Evidence at the hearing[3] The applicants’ evidence to the Department and the Tribunal comprises the protection visa application; the applicants’ evidence at the interview with the delegate for which there is an audio recording and to which the Tribunal has listened; statutory declaration made by the applicant on 4 May 2021 and their evidence at the Tribunal hearing. The applicants are from Multan, Punjab and have [a number of] children. In their protection visa application, they stated that [they have children living in Country 1, Australia and Pakistan]. At the hearing, the applicant said that they have one child in Pakistan, [who] lives in Multan employed in [Occupation 1] work. [Another child] had left Pakistan and is now living in [Country 2]. The applicant completed high school in Pakistan and began working in [Occupation 2] in [Workplace 1] in Multan. The applicant and his wife married in 1975 and from 1980 they lived in that same area. In 2000, the applicant, his wife and family went to live in the [Colony 1] in Multan. In 2003 the applicant retired from employment at [Workplace 1] and from that time received a pension. With respect to suffering harm for being Ahmadi, the applicant said that when people find out a person is Ahmadi, that person becomes targeted. He and his wife changed address in 2000 because at the former address offensive writing would be put on their home. This same form of harm happened after they moved to their new address in 2000. In his life in Pakistan, the applicant said that a number of times people slapped him saying that he was not a Muslim. When he would go to a shop a sign would say “do not serve Ahmadis”. He would be stopped on the street and harassed. His home was broken into and robbed for which the police would not take action. When he worked at [Workplace 1] he would be called offensive names. The applicant also recalled when his own father died that his family was stopped from burying him. With respect to how he and his wife practised their religion in Pakistan, the applicant said that their daily practise was not accepted and numerous aspects of the practise of their religion could not be undertaken to avoid being harmed. When asked if he attended a mosque or meeting place for Ahmadis, the applicant said that they would go to a certain meeting place but do so secretly. The Tribunal asked the applicant to describe the differences between attending a mosque for Ahmadis in Australia and gathering with Ahmadis in Pakistan. In response, the applicant said there was a huge difference; primarily, in Australia, the applicant could openly attend prayers on a Friday.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).DECISION The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that the applicants meet s 36(2)(a) of the Migration Act. Date of hearing: 15 May 2025Representative for the applicant: Mr Hameed Ahmad (MARN: 1912503)ATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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