2016596 (Refugee)
[2025] ARTA 1706
•4 July 2025
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 2CASES
AGA16 v MIBP [2018] FCA 628
Appellant S395/2002 v MIMA (2003) 216 CLR 472
FCS17 v MHA (2020) 276 FCR 644Any 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 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.[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.
The applicant and his wife applied for visas to go to other countries. Their more recent applications for visas to go to [Country 1] were refused. They did receive visas to enter [Countries 3, 4 and 5]. When asked why they applied for visas for those countries, the applicant said that he and his wife hoped that they could save their lives by going there. However, he said that they were not able to undertake that travel. In August 2019 the applicants came to Australia and applied for protection in October 2019. When asked why they did not come to Australia prior to that date, the applicants said that their children were younger and needed care. The applicant said that those children got older and they themselves left Pakistan.
When asked why did they remain in Pakistan and not leave prior to August 2019, the applicant said that the [child] who remains in Pakistan had children. Further, they had tried to obtain visas to enter [Country 1] where some of their children were living but were not successful. The applicant’s [child] in Pakistan is trying to leave as are [his/her] children. This is because the [child] suffers the same harm that was suffered by the applicant based on being Ahmadi. In fear of harm and for employment, the applicant's [child] goes to other places in Pakistan.
To the Department, the applicant produced a letter dated 31 May 2020 from the Vice President of [an Ahmadiyya Muslim association] who stated that the applicants were members of the Ahmadiyya Muslim Community. At the hearing, the Tribunal asked the applicant how he obtained this document. The applicant said that he and his wife entered the community and the association in Australia requested a letter from the Ahmadi community in Multan for verification.
When asked for her comments on their application, the applicant’s wife said that life in Pakistan as Ahmadi was hard. She advanced similar claims to those recorded by the applicant above about maltreatment for being Ahmadi. [Child A] who lives in Australia gave evidence at the hearing. [He/she] said that in Pakistan they would be told do not go to a mosque and they would stay at home. [Child A] said that fasting by Ahmadis along with five times daily prayers were all kept secret to avoid harm. To avoid being attacked they had to go to a mosque in a different way. [He/she] also referred to restrictions on the liberty of Ahmadis to be reading the Quran.
[Child A] gave the same account as the applicant about the treatment of the family where they lived in Pakistan. [He/she] was hurt by the discrimination [he/she] encountered. [Child A] said that [he/she] knew an Ahmadi doctor who had been killed, attending his funeral. At the hearing the representative submitted that the applicants wearing traditional clothes could be seen as posing to be Muslims placing them at risk of harm. He referred to a 71 year old Ahmadi male held and dying in prison from being caught offering five daily prayers. The representative submitted that every time an Ahmadi fasts or reads the Quran they are considered as breaking the law for acting as Muslims. The representative submitted that Ahmadis including the applicants would keep a low profile in Pakistan to avoid suffering harm.
To the Tribunal, the representative submitted a statutory declaration made by the applicant on 4 May 2021 in which he put forward a similar account to that he gave at the hearing about his life in Pakistan as an Ahmadi. In this declaration the applicant said that he could not freely practise his religion, he was scared to publicly declare his faith and named certain religious obligations he was not allowed to freely perform including offering daily obligatory prayers. The applicant said that he was always compelled to hide his faith and perform his religious tasks away from the eyes of others. In his declaration the applicant said that he was referred to by derogatory names causing him to vacate residential property. He received threats of harm if he did not renounce his faith.
The representative also submitted a statutory declaration made on 4 May 2025 by the applicant's niece; a statutory declaration made on 6 May 2025 by the applicant’s stepbrother and a statutory declaration made on 8 May 2025 by [Child A] who appeared at the hearing. These declarations contained claims about the treatment of Ahmadis in Pakistan as well as the treatment of the applicants in Pakistan as recorded above. In his declaration [Child A] said that [his/her] parents are at an advanced age and suffer from various health conditions. They cannot drive or use public transport due to their health conditions, age and language barriers. [Child A] said that the applicants were attending regular medical appointments.
With these documents, the Tribunal was provided with medical reports, the most recent issued in April 2025 listing the numerous conditions suffered by the applicant which includes [Medical conditions 1, 2 and 3]. In August 2024 the applicant was admitted to hospital with [Medical condition 4] and was to undergo [surgery].
FINDINGS
Findings on credibility
The Tribunal accepts the claims of the applicant, his wife and [Child A] that they are Ahmadis. The Tribunal accepts as credible the evidence of those three persons about how the applicants lived in Pakistan as Ahmadis including how they were treated and the manner in which they adhered their faith to avoid harm. Although the delegate found a lack of what the delegate referred to as substantiating detail when interviewing the applicant about harm suffered in Pakistan, the Tribunal considers that the applicant was relating an account of events that occurred over decades of his life. The Tribunal is satisfied from the evidence of the applicant, his wife and [Child A] at the hearing that his claims of harm suffered in Pakistan are credible.
Findings on merits
Do the applicants satisfy the refugee criterion for protection?
The Tribunal now turns to the issue as to whether there is a real chance that the applicants will suffer serious harm in Pakistan for being Ahmadi. In its country information report on Pakistan, DFAT defines Ahmadis in these terms:
“Ahmadis belong to the Ahmadiyya, an Islamic revival movement that regards Mirza Ghulam Ahmad of Qadian (founder of the religious community) as their ‘Promised Messiah’. The name Ahmadiyya is taken from ‘Ahmad’, the other name of the ‘Prophet Muhammad’.”[4]
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.82.
The population of Ahmadis in Pakistan is estimated to range from 400,000 to four million.[5] The Constitution establishes Islam as the official religion of Pakistan.[6] Article 260 of the Constitution defines the term ‘Muslim’, and explicitly excludes from that definition several groups, including Ahmadis.[7] Related to this, DFAT states that “[o]fficial religious discrimination of Ahmadis in Pakistan is pervasive and well-documented”.[8] DFAT refers to specific laws in Pakistan that restrict Ahmadis practising their religion:
“Under Ordinance XX (1984), Ahmadis were banned from publicly practising their faith; using non-Ahmadi mosques or public prayer rooms for worship; using Islamic texts for their prayers; performing the Muslim call to prayer; producing, publishing or disseminating religious materials; using Islamic greetings in public; seeking converts; and publicly quoting from the Quran. Ordinance XX (1984) also made it a criminal offence for Ahmadis to identify themselves (‘pose’) as Muslims, placing them at risk of blasphemy charges.”[9]
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.83.
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.62.
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.62.
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.85.
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.85.
As the only group in Pakistan identifying themselves as Muslim but given “non-Muslim minority status”, Pakistan authorities and the general public view public acts of worship by Ahmadis as blasphemy.[10] Ahmadis have been charged under the Pakistan Penal Code for blasphemy for reciting the Quran and posing as Muslims.[11] Ahmadis cannot dispute these charges because providing “counternarratives” based on their religious beliefs could constitute preaching also considered as blasphemy.[12] People accused of blasphemy face a high risk of official and societal discrimination on the basis of religion which can include extrajudicial killing and arrest and detention.[13]
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.86.
[11] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.86.
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.86.
[13] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.74, 3.76.
Ahmadis have also been charged for breaching the Prevention of Electronic Crimes Act designed to curb hate speech but used in practice to protect majoritarian interpretations of Islam.[14] The High Court and Supreme Court in Pakistan have made some favourable judgements regarding Ahmadis, including to allow them to practise their faith at home.[15] However, the rulings of one judge were not implemented by local authorities who remained prejudiced against Ahmadis, that same judge receiving a number of death threats.[16]
[14] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.87.
[15] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.88.
[16] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.88.
DFAT states that Ahmadis face a wide range of official discrimination due to their designation as non-Muslims, including barriers to registering marriages, voting, and accessing education and other services.[17] Being designated as non-Muslim, applying for official documents that include passports and birth certificates and registering as voters, where applicants are required to declare their religion result in Ahmadis having to, in effect, renounce their religion, something to which almost no Ahmadis would consent.[18] This also results in them being referred to in official documents by a derogatory term offensive to them.[19]
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.89.
[18] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.89, 3.90.
[19] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.89.
With respect to the treatment of Ahmadis by Pakistan society, many Muslims consider Ahmadis to be heretics, “[b]ased on the differences between some Ahmadiyya beliefs and those found in Sunni and Shia Islam”.[20] DFAT states that Ahmadis are “regularly subjected to societal violence based on their faith and have had their places of worship damaged and desecrated.”[21] Human rights advocates and Ahmadi community leaders allege police and local authorities rarely took action to prevent such attacks, police being reported to have even participated in and led attacks against the Ahmadi community and local authorities preventing repair or rebuilding of Ahmadi places of worship.[22]
[20] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.82.
[21] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.91.
[22] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.91.
DFAT also states that Ahmadis have been subjected to organised hate campaigns based on their religion by Sunni sectarian religious groups, including holding public rallies against them.[23] Related to this, in 2023, religious scholars and lawyers collaborated to bring blasphemy charges against Ahmadis and judges and members of parliament regularly spoke out against Ahmadis to bolster their own image in the community.[24] This is the case even though in that same year, senior military leadership publicly requested that the targeting of Ahmadis be stopped, the military had intervened to provide increased security to Ahmadis and pressured police to take action against Sunni sectarian religious groups attempting to desecrate Ahmadi mosques.[25]
[23] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.92.
[24] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.92.
[25] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.92.
In terms of societal discrimination, DFAT states that Ahmadis experience such discrimination and ostracism in employment and everyday life including unofficial bans on Ahmadis entering shops, Ahmadi businesses being targeted by religious groups for damage and boycotts, Ahmadis not being employed in local government or the police and Ahmadis being expelled from schools because of their religious beliefs.[26] In terms of the impact of the attitude of Pakistan authorities and society towards them, DFAT was informed that “there were very high levels of Ahmadi emigration, primarily in response to the official and societal discrimination”.[27] DFAT then states that “[m]any Ahmadis do not publicly identify themselves for fear of discrimination and maintain a low profile to avoid societal discrimination and violence”.[28]
[26] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.93.
[27] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.83.
[28] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.84.
Based on the above, DFAT assesses risk of harm for Ahmadis from Pakistan authorities in the following terms:
“DFAT assesses Ahmadis in Pakistan face a high risk of official discrimination on the basis of their religion in the form of legal prohibitions of their faith. This can lead to difficulty obtaining official documentation, inadequate state protection, unfair trials, and prosecution for religious offences. DFAT assesses Ahmadis living outside of Rabwah also face a high risk of official and societal discrimination accessing public and social services, housing, government employment and education.”[29]
[29] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.94.
With respect to harm from non-state actors, DFAT assesses the risk of harm for Ahmadis in these terms:
“DFAT assesses Ahmadis who do not publicly identify as such and maintain a low profile generally have a low risk of being identified by militants and non-state actors due to their lack of identifying characteristics, with the exception of some females who may be distinguished by those aware of distinctions in their dress, and hence face a low risk of physical violence and being killed extrajudicially. DFAT assesses while Ahmadis in Rabwah face a low risk of physical violence and being killed extrajudicially, Ahmadis living outside of Rabwah face a moderate risk of violence in the form of extrajudicial killing. DFAT assesses relocation to Rabwah by Ahmadis is possible and can lessen their well-founded fears of sectarian violence, however barriers exist in terms of access to community support.”[30]
[30] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.95.
The Tribunal notes the reference in these statements to Rabwah, located in Punjab with a population of 70,000 people and being the only “Ahmadi majority city in Pakistan”.[31] Further below in this decision, the Tribunal examines the risk of harm to the applicants in that location with respect to the issue of whether there is a real chance that the applicants will suffer serious harm in all areas of Pakistan (s 5J(1)(c)).
[31] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 30 April 2025, at 3.83.
In addition to this most recent report on Pakistan by DFAT, the Tribunal has also considered other sources of country information on the treatment of Ahmadis in Pakistan. The most recent of those is a report produced by the United Kingdom Home Office (“the UKHO”) in March 2025.[32] In this report, based on various sources of country information, the UKHO expresses assessments of the treatment of Ahmadis by both state and non-state agents, similar to those expressed by DFAT.[33] Similar content about the treatment of Ahmadis in Pakistan was also put forward in reports by the United States Department of State[34] and the Netherlands Ministry of Foreign Affairs.[35]
[32] United Kingdom Home Office, Country Policy and Information Note Pakistan: Ahmadis, Version 6.0, March 2025.
[33] See Sections 3.1, 3.2 and 4.
[34] United States Department of State, Pakistan 2023 International Religious Freedom Report, at “Executive Summary” and Section II. Status of government respect for religious freedom.
[35] Netherlands Ministry of Foreign Affairs, General Country of Origin Information Report on Pakistan, 5 July 2024 at pages 67 – 68.
According to country information, being considered as non-Muslims, Pakistan law places restrictions on Ahmadis practising their religion. On that same basis, Ahmadis are clearly at risk of prosecution under laws including blasphemy on the basis of practising their religion. On that same basis, in terms of official documentation, Ahmadis face renouncing their religion. For being Ahmadi and practising their religion, Ahmadis encounter violence to themselves and their places of worship from non-state agents who regard them as heretics. From non-state agents, based on that same attitude, Ahmadis encounter discrimination.
Those aspects of the treatment of Ahmadis are to the effect that to avoid suffering harm from state or non-state agents Ahmadis must restrict how they practise their religion and publicly identify themselves. According to DFAT, many Ahmadis do not publicly identify themselves as Ahmadis, many maintain a low profile and a large number have left Pakistan. Applicants may choose to conceal their religion from those who may harm them by being discrete, but they cannot be required to take steps, reasonable or otherwise, to avoid offending those agents of harm or to modify some attribute or characteristic to avoid persecution.[36]
[36] Appellant S395/2002 v MIMA (2003) 216 CLR 472 at [40], [80].
The Tribunal considers that if the applicants as Ahmadis, to avoid suffering harm, refrained from restricting how they practise their religion and refrained from avoiding to publicly identify themselves as Ahmadis in their general aspects of living, there is a real chance that they will suffer serious harm. That finding is based on the statements made by DFAT that it is those who do not publicly identify as Ahmadis and maintain a low profile who are at only a low risk of physical violence. That is maintaining a low profile to avoid being harmed.
The Tribunal understands that the applicants practised their religion in a restricted way in Pakistan and did so to avoid suffering harm. Based on their accounts of their lives in Pakistan, the Tribunal considers they would resume doing that on return to Pakistan to avoid what would amount to serious harm. The Tribunal must also consider the risk that exists of them suffering serious harm because they are Ahmadi, even if they restrict their religious practice and do not publicly identify as Ahmadis. That is based on DFAT’s assessment that with respect to harm from non-state agents, Ahmadis who do not live in Rabwah are still at a moderate risk of violence in the form of extrajudicial killing.
Further, Ahmadis generally are at high risk of official discrimination which could include inadequate protection, prosecution for blasphemy along with impact on their ability to access public and social services. Such examples of harm are consistent with the instances of serious harm specified in s 5J(5). With those factors the Tribunal acknowledges that in assessing the seriousness of harm it is necessary to have regard to personal attributes such as age and frailty as well as personal vulnerabilities.[37] The evidence before the Tribunal about the age and health of the applicants, including the medical evidence put forward, indicates their frailty and vulnerability.
[37] AGA16 v MIBP [2018] FCA 628.
On these combined grounds, the Tribunal finds that there is a real chance that the applicants will suffer serious harm on return to their place of residence in Pakistan. In reaching this finding, the Tribunal has acknowledged the delegate’s view that for many years the applicant lived in Pakistan practising his religion with certain restrictions causing the delegate to find that resuming that same practice on return to Pakistan did not amount to serious harm. The difficulty the Tribunal has with that finding is that the applicant conducted himself in that way over many years to avoid harm. If returned to Pakistan the applicant would be again restricting the manner in which he practises his religion to avoid harm.
Further, this must also be considered along with country information about the prevailing risk to the safety of Ahmadis due to the way they are regarded under Pakistan law, by Pakistan authorities and by Pakistan society. With this is the age and frailty of the applicants and their vulnerability. On those combined grounds the Tribunal finds there is a real chance that the applicants will suffer serious harm in Pakistan.
The essential and significant reason for that serious harm is the applicant's religion (s 5J(4)(a)) and, on that basis, such harm is systematic and discriminatory (s 5J(4)(c)). The Tribunal considers that in all areas of Pakistan there is a real chance that the applicants will suffer serious harm for the essential and significant reason of their religion (s 5J(1)(c)). This is because the sources of country information considered by the Tribunal in discussing the treatment of Ahmadis do not state that this is restricted to particular parts of Pakistan. The only possible exception to that position would be whether there is a real chance that the applicants will suffer serious harm if they were to live in Rabwah.
DFAT states that the community in that city have high quality facilities and [hospital].[38] In addition the government provides security including vehicle checkpoints and searches on entry and exit.[39] DFAT states that those who live in Rabwah face a low risk of physical violence and being killed extrajudicially. Further, those who relocate to Rabwah can “lessen their well-founded fears of sectarian violence”. Even so, DFAT also states that generally Ahmadis face a high risk of official discrimination based on their religion in the form of legal prohibitions of their faith which the Tribunal understands to apply to those who live in Rabwah.
[38] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025, at 3.83.
[39] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025, at 3.83.
Another issue to be considered in this respect is also that the reference in s 5J(1)(c) to all areas of a receiving country are to be areas where there is safe human habitation and to which safe access is lawfully possible.[40] Those areas that are “unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food shelter or work” are not included within the areas of receiving country.[41] DFAT states that Pakistan law provides for the right to freedom of movement which the authorities generally respect.[42] Those migrating to other areas often rely on family, friends, tribal or ethnic networks to establish themselves.[43] Social and economic barriers can impact vulnerable groups disproportionately.[44]
[40] FCS17 v MHA (2020) 276 FCR 644 per White and Colvin JJ at [81].
[41] FCS17 v MHA (2020) 276 FCR 644 per White and Colvin JJ at [80].
[42] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025, at 5.29.
[43] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025, at 5.29.
[44] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025, at 5.29.
Taking into consideration the age of the applicants and their state of health, the Tribunal considers them to be vulnerable. On those grounds, although relocating to a city with a majority population of followers of their religion, they would be exposed to a likely inability to find food, shelter and subsistence. On that ground the Tribunal, in the particular circumstances of these applicants, finds that Rabwah is not included as “all areas of a receiving country” as stated in s 5J(1)(c) (and as discussed in FCS17 v MHA (2020) 276 FCR 644 per White and Colvin JJ). Accordingly, the Tribunal finds that the real chance of serious harm relates to all areas of Pakistan.
Based on the country information set out above, the Tribunal considers that effective protection measures are not available to the applicants in Pakistan (s 5J(2)). This is because even though there are references in country information to the Pakistan military acting in favour of Ahmadis, that is not the case for the police who, according to country information, can act against Ahmadis and fail to protect them. The Tribunal must also consider the legal prohibitions that exist in Pakistan against Ahmadis following their religion. On these grounds, the Tribunal considers that effective protection measures as defined in s 5LA, are not available for the applicants.
With respect to s 5J(3) an applicant does not have a well-founded fear of persecution if the applicant could take reasonable steps to modify the applicant’s behaviour so as to avoid a real chance of persecution in the receiving country. However, for these applicants, the Tribunal considers that modification of their behaviour to avoid a real chance of serious harm would require them to act within the meaning of s 5J(3)(c)(i) of the Act. The Tribunal considers that restricting the manner in which they practise their religion including not publicly identifying as Ahmadis would amount to altering their religious beliefs, concealing their true religious beliefs or ceasing to be involved in the practise of their faith in terms of the restrictions imposed on them under Pakistan law and in practice to avoid harm from both state and non-state agents. For these reasons, the applicants cannot take reasonable steps to modify their behaviour to avoid a real chance of serious harm.
There is no evidence before the Tribunal that the applicants have the right to enter and reside in a third country (s 36(3)). For all of the reasons given, there is a real chance that the applicants will suffer serious harm on return to Pakistan in the reasonably foreseeable future based on their religion. Accordingly, the Tribunal finds that the applicants have a well-founded fear of persecution and do meet the refugee criterion in s 36(2)(a).
Do the applicants satisfy the complementary protection criterion for protection?
Having concluded that the applicants do meet the refugee criterion in s 36(2)(a), the Tribunal does not have to consider the alternative criterion in s 36(2)(aa).
CONCLUSIONS
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 2025
Representative for the applicant: Mr Hameed Ahmad (MARN: 1912503)
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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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