2309724 (Refugee)

2309724 (Refugee) [2024] AATA 2737 (28 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2309724
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:28 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 June 2024 at 3:53pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – threatened after questioning Islamic teachings and practices – now atheist/secularist/liberal – new claim as public project worker – threats and friend killed – employment as project worker not accepted, no profile and no recent threats – mental health – partner and child in Australia – fear of honour killing – country information – limited state protection and modification of behaviour and relocation not reasonable – partner’s separate protection visa application – limited information and not able to test evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (4)(a), (c), 5L, 36(2)(a), 65, 91R, 91S, 425
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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 Immigration and Border Protection 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 applied for the visa on 25 November 2013 and the delegate refused to grant the visa on 11 March 2015.
The applicant appealed the decision to the Administrative Appeals Tribunal and the matter was heard by a differently constituted Tribunal on the 11 November 2016 and decided on 12 May 2017. The member had questioned some aspects of the applicant’s claims. She had found that the applicant had not worked in a polio vaccine campaign and that the member had not accepted the documents produced by the applicant in support of his role in a polio campaign. The matter is before this Tribunal because on appeal a Court found that the member had erred by failing to comply with its obligations under s 425 by not giving the applicant the opportunity to give evidence and present arguments in relation to the basis of the findings.
The applicant appeared before the Tribunal on 20 February and 15 March 2024 to give evidence and present arguments. Evidence was received by the applicant’s partner who has her own, separate, protection visa application. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 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: s 36(2)(aa) (‘the complementary protection criterion’).
‘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.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s mental health
The applicant has in the past been prescribed Peroxitine. He said that he stopped taking it in 2020 as it wasn’t helping. He said that the past few years have been difficult for him. He had previously seen a psychologist but thought that the psychologist wasn’t helping, so he stopped seeing him.
A letter from the applicant’s psychologist dated 2016 was provided to the differently constituted Tribunal. In the letter the psychologist states that the applicant had been ‘attending intermittently’ and was being treated through cognitive behavioural therapy. The psychologist writes that at the time he was on prescribed antidepressants. She concluded that the applicant had ‘a very limited ability to participate during his Immigration Tribunal hearing’. The letter outlines the need for the member to provide the applicant frequent breaks.
Based on this letter and his diagnosis I provided the applicant opportunities to take additional breaks, endeavoured to repeat and rephrase questions when the applicant appeared not to understand and otherwise drew on the Tribunal’s Guidelines on Vulnerable Persons.
Evidence and findings of fact
The applicant is a [Age]-year-old male from [City], Khyber Pakhtunkhwa (KPK) province. He said that his early years were good, completing schooling in [City] and obtaining a degree from Peshawar. He subsequently obtained a scholarship to pursue [a Qualification] in Peshawar. He has two brothers, both of whom live in [City], one with their mother, another separately. He has [sisters] who are married and live outside of [City] in Khyber Pakhtunkhwa and Punjab.
The applicant claimed that he first started to receive threats in 2011 when he received a call telling him that he needed to follow Islam or be punished. At the time he was asking questions about Islam, such as if we were created by God, who created God. But those who were threatening him accused him of ridiculing Islam. His brother advised him to go to the mosque and pretend to be Muslim. So, he forced himself to keep going once a fortnight for a few months but then gave up, sometime around August 2012, as he didn’t want to pretend anymore.
In earlier submissions the applicant wrote that by September or October 2011 the same caller changed the tenor of the threat to, ‘We have already informed you before and if someone left Islam you know the punishment.’ At the hearing he said that these calls were between 2010-2012, and that he couldn’t remember the exact dates as he has been suffering from depression.
The applicant said that his brother also received calls about him. He believes this was the case because his brother followed Islamic practices and so others asked his brother to speak with the applicant about his faith.
While the threats were over the phone, in one instance he recalled coming across a boy with a large physique who said to him, why don’t you follow Muslim practices, adding that he had been told many times. This ‘boy’ was known to the applicant as he used to go to the same mosque.
Sometime in early 2012 the applicant claimed that he received a threatening call in which the caller referred to an incident at a [location] where the applicant had questioned a preacher. The incident at the [location] involved a preacher who called the boys over to speak about Islam. As the preacher was speaking about Islam the applicant asked why Muslim women can’t marry four men since Muslim men can marry four women.
Through this period the applicant was living with his family. He wasn’t physically harmed but he claimed that it took a toll on his mental health as he believes that people looked down at him.
After these incidents the applicant claims that he started working in [an occupation] role and on polio vaccine campaigns as well, and as such he no longer faced the same issues as he was away from his community. The applicant claimed that he started working as [an occupation] in January 2010 and continued through to December 2012. As for the timing of his work on the polio campaign, this is discussed further below due to sometimes conflicting claims.
I accept that the above events occurred because country information describes Khyber Pakhtunkhwa as being conservative in the religious sense, and that at that time a radical and extremist form of Islam was propagated by the Pakistan Taliban.
Polio campaign
The applicant said a friend, [Mr A], introduced him to the opportunity to work on the polio campaign around the time that he was pursuing his [Qualification]. He confirmed that it was before he began working as [an occupation]. I put to him that his protection visa application states that the [Qualification] was between 2007 and 2009. He concurred and added that the course work went through to 2009 but the final project continued into June or July 2010. He then explained that he was undertaking training for the polio role in December 2011 and undertook the work in 2012. I put to him that twice he had said that he did the polio work during his [Qualification] studies. He then stated that he started the polio work after his studies. He clarified that he met the person who introduced him to the polio opportunity while he was studying and that he only started working with the polio campaign later.
The applicant said that he worked 3 days a week as [an occupation] and on the remaining days he worked on the polio campaign. I noted at the hearing that he had listed his employment as [an occupation] but there was no mention of his polio work. He blamed his agent for the omission. I explained that I wasn’t referring to his student visa application but the protection visa application which he had completed himself according to the form. He said that he just copied across what was in the student visa.
I noted to the applicant that his reasons for fearing harm in his protection visa application didn’t include any mention of any harm arising from his polio work. He said that he discussed the matter with his housemate who advised him to go with just one thing at a time which at the time was his claim of being an atheist.
I asked about the claim of harm arising from his polio work not being mentioned in the interview with the Department as recorded in the delegate’s decision, which was provided to the Tribunal by the applicant. He said that as it wasn’t included in his application, he didn’t mention it at the Departmental interview.
The applicant claims that the office out of which the polio campaign was being run received a series of letters warning him against working in support of polio vaccination.
The first was a letter received in May 2012 saying that polio work was against Islam and that they should stop. He claimed that initially his supervisor advised that the author of the letter was probably not the Taliban as claimed but someone who wanted their job.
The second came in August 2012 and it was addressed to him and [Mr A] noting that they had warned him, and he had ignored the warning. The applicant said that this warning came from the Emir of the Taliban. I put to the applicant that it is implausible that the Emir of the Taliban would bother knowing his case and writing to him in anything other than a generic letter. The applicant said that it was a specific letter to his circumstances, but the authorship was limited to just the title of the Emir and no name underneath it.
The third and final letter came in September 2012. On the same day that it was received his friend [Mr A] was shot and killed. The applicant recalled that his employer told him not to come to work at the time. Instead, his brother collected the letter from the office and that is how he knows that the letter stated that he had to be executed. The applicant said that the letter he received was addressed to him and that he doesn’t have a copy. He said that he had asked his family to look for it, but they couldn’t find it.
Noting that the applicant was claiming to be working out of [Department], I asked how many other polio workers received a threatening letter from his unit. He said that he and [Mr A] received separate letters. He said that he doesn’t know how many others received letters. He claimed that his supervisor was private about such issues, and they didn’t discuss other’s circumstances. I asked whether his other team member received one. He said only he and [Mr A] would discuss such issues between themselves. He said that they thought she might get scared to talk about it so they didn’t discuss it with her.
After his friend’s death and having received a third letter the applicant claims that he stopped working and went into hiding. I asked how he obtained the visa to Australia if he was in hiding. He said that he mostly spent his time at his sisters’ places. He said that his agent applied for the student visa without his involvement. I put to him that he had to do a medical check and go to the embassy, to which he responded that the agent would contact his brother to inform him of what needed to be done, he would then attend the necessary appointments and then go back into hiding.
The applicant said that he feared stopping work wouldn’t help as the last letter was a declaration that he had to be executed.
I noted that it seemed that this incident was the prompt for him to leave Pakistan as he had written in his statement at [35]: ‘After [Mr A] was killed…my brother and I contacted the agent to fast track the visa application.’ I put to him that he was on the one hand claiming that the threat arising from his polio work was front and centre on his mind and yet when he arrived, he did not mention it in his protection visa application. He simply confirmed that that is the case.

The applicant provided a newspaper article reporting on [Mr A]’s death. The article included information about the threat to him. I asked how he thought the journalist got that information as it was very specific. He said that the hospital was managing a news website. But this would still require a journalist to compile the news article and I note that the applicant had described how tight lipped his colleagues and supervisor were when it came to threats.
The applicant provided a translation of the article:
Some unknown assailants opened fire upon [Mr A], a polio eradication worker at [a locality] in Khyber Agency. Consequently, [Mr A], died on the spot. As per details, [Mr A] and [the applicant], polio eradication workers, received letters containing threats by Taliban who demanded their separation from the polio team. [Mr A] was hit by unknown assailants when he was going to office last morning. [The applicant], another colleague of [Mr A], received intimation on mobile that Taliban had killed him. And he was urged to escape. Therefore, he escaped and went back to [City] and was saved by any untoward accident. Political administration has started investigation of the incident.
The newspaper article that was provided came in the form of a scanned copy of an article along with the newspaper heading in a format that would appear in a printed newspaper but with no other articles around it. I asked if he had the article before he came to Australia. He said that he only started looking for articles when he decided to include the claim in his AAT appeal.
He said that he went to a [website]. I put to him that what he sent is from a newspaper called [deleted]. He said that [deleted] is the name of the newspaper, and [the website] would take articles from there and put them on their website. I noted that the article that was provided to the Tribunal was not a website formatted article, but it appeared to be from a newspaper. He said that [the website] would take articles, cut them, and publish them as newspaper articles on their website. He said that they were scanned and uploaded. He said that [the website] is no longer operational.
I noted to the applicant that in an academic article that lists polio workers killed in Pakistan, as confirmed by local news reporting, it does not have an incident listed in September 2012 which is when he was claiming [Mr A] was killed.[1] The applicant said that he had seen a separate list and his friend’s name was on it. I noted that the academic article specifically refers to obtaining the information through local news which would include sources such as the one the applicant had provided to the Tribunal. The applicant said that because he hadn’t checked the list himself, he can’t comment.
[1] s424
I put to the applicant that there is considerable information about document fraud including from DFAT which states that it is widespread and that just about any type of document can be obtained.[2] The applicant said that he is not sure what happens in a general situation, but he reaffirmed that he downloaded the article from a website. He said that the army closed all Federally Administered Tribal Area websites.
[2] DFAT Country Information Report – PAKISTAN - January 2022 at [5.52] - [5.53]
With regards to the veracity of the letter stating that he was appointed in January 2012 by the [named agency], I noted that it doesn’t mention a start date, end date, salary, or role, just that he was appointed. I put to him that this seems a strange appointment letter. He said that all that he was given he has given to tribunal.
The applicant claimed at the second hearing that he was living at his home address through to one or two months before his departure for Australia. Then, in those final months, he was moving between his sister’s houses in Peshawar and [Location], both in Khyber Pakhtunkhwa and [another] sister’s house in Punjab.
I have serious doubts about the applicant’s claims of having worked on a polio campaign. In support of the applicant’s claims is documentary evidence which in some instances is itself weak such as the letter from the [named agency] appointing him to the role. Also in support of his claims is his ability to consistently recall the names of his colleague and supervisor. But in the alternative, there are considerable reasons to disbelieve his claims. That he didn’t mention the polio campaign until the first AAT hearing lends considerable weight to these doubts. I find it implausible that he would not mention the basis of the most recent threats he received, especially considering a friend who did the same job was killed for the same reasons and that this was in part what prompted him to seek a student visa. When considering the entirety of the applicant’s claims, I find that he was not a polio worker. I find that he fabricated the claims and that he produced bogus documents in support of his claims. I find that the applicant was not in hiding as claimed.
Community threats
The applicant claimed that his brother received a call in March 2013 indicating that he won’t be able to return. He wrote in his statement, ‘He told me that he received some threats [pertaining to the applicant] from the community.’ He explained at the hearing that he didn’t know the reason behind the timing or what was driving it. He surmised that maybe the member/s of the community who contacted his brother tried his number and after they were unable to contact him, they called his brother. I noted that in his statement he says that he talked to his brother about it, and they believe that the reason for the calls was because of his work as a polio vaccinator and that he was known to be an infidel. When it was raised that these 2013 calls to his brother weren’t mentioned in earlier submissions the applicant referred to his roommate’s advice about focusing on just one point to run his case and that atheism was a solid reason to base his case on.
The applicant claimed that in 2016 he was informed by his family that they had received a visit from two policemen and two members of the community in February 2014 asking about him and saying that he had been accused of blasphemy. He confirmed that since then there have been no visits to his family. He said that this came up in his conversations with his family as his Australian lawyers in 2016 were asking him questions that were conveyed to his brother and only then did his brother tell him about the 2014 incident. I put to him that it’s hard for me to believe that he left Pakistan in January 2013 and that in February 2014 his family would be visited by authorities arising from an accusation of blasphemy noting that he hadn’t been in the country for over a year and prior to that he had claimed to have been moving around between his sisters’ houses as he was in hiding. He said that it wasn’t just the police but the community also who were focused on him and that this is an indicator that the community is still interested in him. He claims that his family didn’t tell him about it because they knew he was living alone in Australia, and that it wouldn’t be good for his mental health.
I asked the applicant if there were any other visits to the family home. He said that he has not been informed of any other. I put to him that it was claimed in his written statement that during the same outreach to his brother in 2016 he learned that 20-30 days after he left Pakistan several Taliban came to the family house, beat up one brother and demanded to know where he was. He had claimed in that statement that the Taliban took some photos that his family had of him and left. The applicant said that he thought my question was only referring to after 2016. He said that there was a misunderstanding.
He described the incident being at night and that his brother opened the door, and they enquired about him. When the brother said that the applicant was not home, they started to beat his brother. I asked why he thought that the Taliban were interested in him in 2013. I said that it would be hard to understand why they would send a group of Taliban to his house to find him considering that he is such a minor player in the wider scheme of events playing out in Pakistan and that if it was about his polio work there were many other polio workers. He said that he was a frontline worker, he would go to people’s home, he would engage with people and that a letter had already been sent about him. He doesn’t think its improbable.
The work area the applicant serviced as a polio worker took about 1.5 hours by public transport according to the applicant and one hour by car. I put to him that it’s a long way away for the Taliban from that area who would know about him to send some people to find him. I put to him that I find it hard to believe that they visited his house as he had claimed. He said that he can’t comment on that.
As I have not accepted that the applicant was a polio worker and noting that the applicant did not have any other profile with the Taliban, I do not accept that the Taliban would dedicate the resources to seek out the applicant by coming to the family home and beating up his brother while seeking the applicant. I do not accept that the applicant’s brother received any phone calls from the community as the applicant had left months earlier, nor do I accept that the police and community came knocking on the door of the family home searching for the applicant as he had left over a year earlier. On both counts, the applicant’s ‘infidel’ profile would have been low if non-existent. While he questioned Islam or wasn’t wholly embracing Islamic practices, he wasn’t outwardly against Islam. For this reason, I find it implausible that the community would not have done something more assertive against him for years but then after he had left continue to express an interest by threatening him and a year later decide to involve the police.
Applicant’s atheist beliefs
Regarding the applicant’s beliefs, he said that he doesn’t believe in any religion. He believes that our lives are a part of evolution and a system that operates on its own. I asked if that view influences the choices he makes in his life to which he said that his decision making doesn’t have anything to do with belief or religion.
The applicant said that he would read about atheism in Pakistan but not in Australia as he didn’t see the need. He said that he used to follow such issues on [Social media] but nowadays he doesn’t follow anyone as he just wants to be left alone. Similarly, before he used to post on [Social media] about atheism and his brother would ask him to delete it. He clarified that he wouldn’t post against Islam but would post what was logical but nevertheless his brother thought it could be perceived as being against Islam. He gave an example that among some in Islam it is believed that the world is flat, but he came across a scientific post that Earth is round, and nothing revolves around the Earth other than the moon which he would then put on his page. Regarding this post and others from the past, the applicant said that his friends and brother would ask him to delete them, so he did. More recently, he said that he hasn’t used [Social media] lately and that in general he doesn’t use social media.
The applicant said that he doesn’t engage in conversations about atheism with people nor had he ever done that. He said that just because he believes in something doesn’t mean that he has to engage with people about it. He reminisced that [named Organisation] assigned a mentor who was an atheist and so they talked about it, but only because he was already engaging with him on other issues.
The applicant said that he is not against religious believers, but he does not like it when they argue with him on things that he doesn’t believe in. He expects the same respect that he affords them to be afforded to him.
The applicant confirmed that his family continue to talk to him even though they know his views on religion.
I asked how would people learn that he is an atheist as opposed to a non-practicing Muslim? He said that when meeting and having general communication, if it goes towards religion then they will find out. I asked why he couldn’t in such a situation change the topic, talk about Islam in general and not go to his own beliefs. He said that if the person keeps going on and on about Islam then he would have to reveal his views. He said that the public would start talking to him and will invite him to the mosque, for example when it is time for namaz, they would say, ‘come with us’ and if he doesn’t, they will get suspicious and they would keep an eye on him.
We discussed country information about atheism in Pakistan including that according to one report about 1 in 10 Pakistanis identify as not religious.[3] The applicant said that he is not sure if the statistic is correct. He said that there are people who say they are Muslim but non-practicing. But he is an atheist.
[3] ‘Losing Our Religion? Two Thirds of People Still Claim to Be Religious’, Gallup International (Bulgaria), 8 June 2015
I noted that in another report it notes that about 40% of Pakistanis don’t go to mosque on a weekly basis.[4] He said that those people may call still themselves Muslim. He said that many of these haven’t left Islam.
[4] >
I noted to the applicant that atheism is not illegal in Pakistan, but publicly professing it can be seen as apostasy. One atheist interviewed on BBC said, ‘“If you're willing to do certain things - have etiquette, respect your parents and be appropriate in public - you can get away with being a disbeliever.”’[5] The applicant agreed. I asked if he could be respectful to his parents and for example not eat during Ramadan. He said that he used to do that and that he doesn’t object to people following social norms but what he doesn’t like is when others force him to do things. I asked him if it is okay to say salam alaykum, meaning peace be upon you, which is a traditional Arabic language Muslim greeting. He said that it is the way they greet each other in Pakistan and that he has no problem with it.
[5] >
I accept that the applicant is not a Muslim. I accept that he is an atheist.
Applicant’s secularist/liberal beliefs
The applicant claimed that he feared harm arising from his liberal and secular views which he expanded at a subsequent hearing to include views that he supports gays, lesbians, and animal rights. He wrote in his application that he believes in freedom of speech and equal rights of human beings regardless of religion or gender.
I put to him that a lot of political parties support liberal and secular values, including the ANP[6] and MQM[7]. As liberal and secular views are not unusual, I asked how it will lead to him facing harm. He said that based on these ideas there are people who target members of these groups and those who hold such values.
[6] DFAT [3.73]
[7] DFAT [3.76]
I noted that earlier he had mentioned how his roommate had advocated that he focuses on one claim and yet his application actually included several different claims including atheism but also liberalism and asked why he hadn’t then included all of his other claims. He said those that he included were interconnected. I put to him that so is being targeted for his work on the polio campaign which is reliant upon modern science and is opposed by religious extremists who also opposed secularism, atheism and liberalism. He said that the polio campaign fears are completely separate, he added that his friend’s status was accepted as a refugee and so he was believing everything his friend said.
I accept that the applicant is quietly supportive of secularist and liberal beliefs.
Having a child outside of wedlock.
The applicant has a partner and child. He met his partner in 2022. He said that his partner is from the same province in Pakistan, Khyber Pakhtunkhwa. He said that the birth of their child was unplanned. They have been living together since the child was born.
He has confirmed that he has not received any direct threats regarding his relationship, but he said that it could be because those that would threaten him don’t have his contact number.
He claims that his partner’s family together with their community jirga went to his family, threatening him. I put to him that in Pashtunwali law the family is responsible for family honour and as he has dishonoured the family it is strange that they have not been harmed or have had to make any reparations. He claimed that his brother made it clear to them that the applicant is not in Pakistan and that there is nothing that can be done as he lives abroad. He added that it is not acceptable to have a child out of wedlock. He believes that the plan is for his partner’s family to harm them as soon as they see them. He said that the jirga have approved a killing.
I asked if the elders of the applicant’s tribe became involved. He said that the jirga deciding what happens to the girl is from the tribe of the girl’s family and that they are responsible for finding and killing the girl and the jirga of the tribe of the boy’s family are responsible for finding and killing the boy but if one family doesn’t do what is expected of them then the other should follow up.
The applicant added later that his partner’s ex-fiancé was a part of the jirga that came to his family house.
The applicant claims that his brother told him to communicate to the family that he is not in a relationship with their daughter, but he refused.
The applicant’s partner has her own protection application that is being run separately. The applicant provided a summary of his partner’s protection visa claims but claimed that her lawyer had told her not to talk about her case in his matter.
The summary of her case provided to the Tribunal included the following information:
I met an asylum seeker girl at my friend’s house who is from my background. Her name is [Ms B]. After some time we’ve been together and she became pregnant without marriage, and we have a [child].
We did not want this child but when we used to know it was too late. Before birth we both went in severe stress about the child’s future, as it will be too hard for her to live in a muslim majority country.
Our friends and her mental health nurse advise us to get marry but [Ms B] refused due to her past trauma. Although we are living together now for [our child].
I fear [our child] will be harmed in Pakistan because she was born out of wedlock. Not just [Ms B]’s family will take no mercy on her but the community will also proudly kill him to please themselves.
If we return to Pakistan three of us will be brutally killed.
[Ms B] was forcefully engaged by her family with his brother’s business partner, while she was in love with [a Country] refugee named [Mr D] in Pakistan. [Ms B] did court marriage and ran away from home to Karachi before her marriage date was fixed. Her family and fiancé chased them down and killed her husband while she was at birthday party of her husband’s relatives. Her family disowned her. She managed to escaped the country.
If we returned to Pakistan, we have threat from [Ms B]’s family and ex fiancé as well as from the community.
I asked some questions of the applicant about his partner’s life in Karachi where she is claimed to have eloped with her ex-husband who it has been claimed was killed.
The applicant was unable to answer simple questions such as how long she continued to live in Karachi after her ex-husband was killed. He said that he didn’t ask about it because she starts crying.
At the second hearing the applicant’s partner appeared as a witness. She confirmed that she was living with the applicant in Australia. Based upon the advice she received from her lawyer she said that she would not be able to provide answers specific to her case.

She said that they are planning to get married but haven’t decided when they will marry. They want to marry because of their daughter. She said that they haven’t moved forward with the marriage because of her mental health condition.
She said that she is from Peshawar and that she grew up there but before coming to Australia she was living in Karachi. I asked how long she had lived in Karachi. She said about a year before coming to Australia on student visa. I asked if her parents supported her in obtaining a student visa, she said that they had not. I put to her that to obtain a student visa you need to provide proof of assets and income and asked what she had included in her application. She said that when she had run away from home she took all of the jewellery that her mother had collected for her and she used that to give to her agent.
I accept that the applicant and his partner are living together with a child. With regards to the other claims, I am concerned with the applicant’s claim that she eloped to Karachi as it appears far-fetched. The student visa application lists Islamabad as the residence, it lists her as never being married, she provided a family household registration that included her parents and brother.
But the applicant’s story of an agent preparing it for her opens the door to accept that any information put onto the application including different addresses or that she was never married was done so by the agent and does not represent the true situation.
That the applicant was able to provide a family registration is only indicative of her having been able to obtain it and not that she had some ongoing relationship with her family. With considerable country information showing how document forgery is common in Pakistan[8], I cannot rely on any information in the student visa application. Without the ability to test the partner’s evidence and with the limited information before me which while seemingly far-fetched is not implausible or contradictory, I accept that she was previously married and that her family organised for her then husband to be killed.
[8] DFAT [5.52]
I also accept that jirgas relating to his tribe and her tribe considered the circumstances of the applicant and his partner and have decided against them. I accept that there is a ruling that they should be punished. The applicant claimed that the punishment is death.
Considerations
The applicant received threatening phone calls from unknown callers over a decade ago relating to perceptions that he no longer practiced his faith. I asked the applicant whether he continued to fear harm from the people who in the past thought ill of him. He said that the threat still exists from the Taliban. He said that he hasn’t been in touch with the community, so he doesn’t know about those individual instances from the past. Considering that the applicant hasn’t lived in his community for over a decade, that his questions against Islam were limited and that he continued to project an image of being a practicing Muslim, I find that any of the past animosity towards the applicant would have dissipated such that the applicant would not be perceived negatively by the community. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from these past experiences.
The applicant fears harm arising from his mental health that if it became known he would face intolerance and they would mock and shun him. He described this fear as ‘if I returned to Pakistan, it will badly affect my mental health. In that society you cannot discuss your mental health openly, because people will make fun, which will put more pressure on my mental abilities.’ He added that he fears not being able to access treatment in Pakistan. I put to him that he could access psychological care through video consultations, noting that it wouldn’t matter where he was, he could access support just as in Australia people on remote mining sites access support by video. He said that this is now possible but wasn’t before.
I noted that anxiety and depression are widely diagnosed in Pakistan, and that it is not a rare diagnosis.[9] I asked why he thought that he would be treated discriminatorily when it is so widespread and common. He said that he remembers before coming to Australia a person in their community who was experiencing mental health problems and people kept teasing him and humiliating him. He said that this man almost went insane because of the way he was ridiculed. He said that his mental health circumstances lead to him losing his temper quickly. He said that he is afraid of losing his temper and then getting himself in further trouble.
[9] Alvi MH, Ashraf T, Kiran T, et al. Economic burden of mental illness in Pakistan: an estimation for the year 2020 from existing evidence. BJPsych International. 2023;20(3):54-56.
The applicant acknowledged stopping his medication for some four years and ceasing to engage with a psychologist for even more years but explained that he feels stuck in Australia halfway between the two countries. He said that he wants to get treated but he is stuck in limbo between the two countries.
When asked whether there was an issue for the applicant to obtain the same medication he had been prescribed previously, he said that it was not an issue and that he just wants to get better.
When considering the applicant’s mental health, I note that he has expressed concern about verbal harassment and being shunned but I noted that mental health challenges of the type the applicant faces are widespread and common in Pakistan. The applicant has not taken any medication for 4 years and has ceased engaging with psychologists and yet he has continued to function normally in society including working and meeting a partner. This is indicative of the applicant’s circumstances being on the lower end of severity. That the applicant was able to identify someone with what appears to be substantially more severe mental health challenges and that there are some individuals who treated that person insensitively, are not representative of the applicant’s circumstances.
With regards to the applicant accessing mental health were he to choose to, I note that the medication previously prescribed is available and I note that there are psychologists in Pakistan including those that offer video consultations. I find that the applicant’s mental health situation is not such that it would lead him to face any stigma or adverse reactions from the community. As noted, the types of challenges the applicant faces are consistent with the circumstances of a substantial portion of the Pakistan population. There is no information before me that indicates that people with similar conditions are targeted or that the community or government withhold resources from people with such conditions. For these reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his mental health.
The applicant is an atheist. He is concerned about harm arising from his views as a non-believer. The applicant fears harm from people who will find out of his non-belief in Islam. The harm he fears is from the community who will find out that he does not practice Islam and that they will then harm him. He fears that if he were to go to the police to file a case against anyone who would harm him, he would then be at risk of the blasphemy laws.
The Department of Foreign Affairs and Trade (DFAT) in their latest report on Pakistan note that:
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.[10]
[10] DFAT Country Information Report – PAKISTAN - January 2022 at [3.32]

100. In the same report it is noted that religious conversion can lead to prosecution under blasphemy laws and familial or communal violence.[11]
[11] Ibid at [3.33]
101. Examples of how some extreme elements within society view apostasy and blasphemy is given in the same DFAT report:
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.[12]
[12] Ibid at [3.36]

102. In conclusion, the DFAT report finds 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.’[13]
[13] Ibid at [3.37]
103. The UK Home Office has also produced reports on apostasy and blasphemy. The findings in the 2024 report align with those of the DFAT report. The UK Home Office notes that ‘society is generally hostile’ to apostates, some face ostracism from their family and may be placed under ‘house-arrest’. They experience ‘discrimination, intimidation, violence from family and the Muslim community and vigilante attacks.’[14]
[14] UK Home Office, Country policy and information note: Christians and Christian converts, Pakistan, April 2024 (accessible) Updated 10 May 2024
104. The above country information describes an intolerance among the general population towards apostates. It describes a risk of violence by extremist groups. While the applicant has not converted to another religion, that he has left Islam would amount to apostasy and would invite accusations of blasphemy.
105. I noted country information from 2012 that indicates 40 percent of Pakistanis don’t attend mosque at least once a week, but it is relevant to note that this figure includes males and females and as women are less likely to attend mosque for prayer the actual number of people of the applicant’s profile would be much higher. I accept that through general interactions with the community or at work people would observe his behaviour and note his lack of connection with Islam. This situation would be heighted during Ramadan and other Muslim days of commemoration when mosque attendance would be high and people would be undertaking their obligations including fasting. If the applicant were not to engage in them questions would be asked.
106. In addition to these risks the applicant had in the past made social media posts which questioned some of beliefs. He noted how his brother and his friends asked him to take some of them down. While the applicant hasn’t made any new posts recently and he has taken those that were contentious down, I find that some people who knew him would have seen those earlier posts and would remember him for them.
107. I find that into the reasonably foreseeable future the applicant’s denial of Islam (apostasy) would become known by way of his absence from activities associated with Islam whether through the workforce or community or by way of those who knew of his social media posts and confronted him about them.
108. With regards to the applicant’s claims of fearing harm arising from his partner’s family as well as his own tribe, I note that that there are hundreds or up to one thousand honour killings a year.[15] But that there would be many more who have dishonoured their families but not been harmed. I asked why he things that the families will do anything. He said that once they have made up their mind, they will kill him.
[15] I put to the applicant relevant country information including that DFAT notes that, ‘Laws against domestic violence in Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa, as well as federal laws, have been introduced that criminalise honour killings and acid attacks.’[16] He said that he can’t rely on the security that the government offers. He said that the matter is dealt with by families at the community level. He said that their will family kill them before they enter court and that he can’t go to the police to seek protection for reasons of his belief.
[16] DFAT at [3.91]
110. I noted that while young men can be targets of honour killing, most victims are female.[17] He said that his daughter has been born out of wedlock and that this exposes him to the same threat. I asked if he were to marry would it solve the problem. He said that the situation is delicate as the child was born out of wedlock. He added that before he became involved with his partner she was already being targeted by her family. He believes that the family are so upset that even if they were married, they would still target them.
[17] I noted that the Human Rights Commission of Pakistan suggest that illiteracy and lawlessness are the two main factors underpinning honour killings. I added that his partner’s family did not appear to be illiterate or have a low education and they are not from what are considered ‘lawless’ areas such as the former FATA. He said that if families feel they have been wronged or humiliated, they will take it upon themselves to avenge themselves. He said that his partner’s family are already tracking her and wanting to take her life and as he is in a relationship with her, they will target him. He said that it doesn’t matter if the person is educated or not, it happens because of cultural ways.
112. The applicant also fears harm to his daughter who is not an applicant. I put to the applicant that I haven’t seen any reporting on children of illegitimate relationships been killed as opposed to the parents and as such if there were instances, they would be very rare. He said that because she was born out of wedlock she won’t be accepted. He added that the jirga has decided to kill both father, mother, and child. I put to him that I haven’t read how this happens anywhere in Pakistan and if it doesn’t happen elsewhere why would it happen to his daughter. He responded that he is just communicating what the jirga decided. He said rhetorically, even if she ends up living, and both parents are dead, then who will take care of her.
113. In considering the applicant’s circumstances cumulatively, I note that I have accepted that the applicant’s atheism would become known and that there is considerable evidence that such a view is not accepted in society. In addition to breaching this cultural norm, the applicant has conceived a child out of wedlock which itself is a breach of cultural norms. The applicant would appear as someone who is dismissive if not disrespectful to societal expectations of behaviour. I have accepted that in the past the partner’s tribe had already punished someone that had transgressed cultural norms and led to the loss of honour within the family. This is evidence that the family are willing to follow through with threats and to take the lives of people to maintain their honour. When considered cumulatively, noting how the applicant’s non-adherence to Islam would make him appear to be an outlier together with the jirga’s ruling against him for reasons of his relationship and child, I find that he faces a real chance of serious harm for the reasons of religion and membership of a particular social group, namely people who have transgressed social norms.
114. To avoid doubt, I have considered whether people who have been found publicly to have transgressed social norms amounts to a particular social group.
115. Section 5L of the Act details the definition of a particular social group:
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.

116. In considering whether people who have been found publicly to have transgressed social norms amounts to a particular social group I accept that it can be a characteristic that is shared by each member and that it is a characteristic that the applicant would share. I also find that the characteristic would distinguish the group from society as they would be labelled as having breached social norms. These labels may not be visible, but this is not the only form that distinguishing characteristics take. Homosexuality has been recognised as a particular social group and yet there are no visible traits. In the social context of Khyber Pakhtunkhwa and among the Pashtun culture I find that word would quickly spread of his transgressions and that it would be a label affixed to him. I find that the characteristic is not a fear of persecution. As such I find that people who transgressed social norms is a particular social group.
117. I find that the applicant’s religious beliefs together with having transgressed social normal are the essential and significant reason for the harm (s 5J(4)(a)).
118. In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I note that the country information indicates that there is a general intolerance and what appears to be a persistently held view among extremists that apostasy should be met with violence. These are not random views but rather institutionalised within certain segments of society. As such I find that the harm he faces arising from his atheist views is systematic and discriminatory.
119. When considering the nature of the harm arising from his transgression of social norms and the ruling of the jirgas I find that the nature of customary law in Pakistan is systematic in that it is an establish law, known as Pashtunwali. I also find that the harm he faces as a result of having transgressed cultural norms is discriminatory as it is directed at him for the actions he has undertaken.
120. With regards to seeking protection from the state (s 5J(2)) I note that the Pakistan government provides security to non-Muslims during special services and religious holidays.[18] In addition, with regards to blasphemy laws, the government requires a senior police officer to investigate any accusation before a complain may be filed.[19] But the risk the applicant faces is first and foremost from the community and any actions that may be taken by individuals against apostates. Mob violence has been widely documented as occurring in Pakistan and the state is often unable to prevent it.

[18] UK Home Office at [4.1.3]
[19] Ibid [4.1.4]
121. When it comes to the other aspect of the harm he faces arising from the rulings of the jirgas I note that the Pakistan state accepts a role for customary structures and laws[20] and although it does not condone honour killings as reflected by the new laws against honour killings and acid attacks, it is often unable to prevent them as noted by the number of deaths that continue to occur.
[20] Abda Khalid, Ingrid Nyborg, Bahadar Nawab Khattak, Whose property whose authority? Gendering the legal and customary practices in ownership and access to land: A case of Swat, Pakistan, Journal of Rural Studies,
122. To properly consider state protection I turn to the guidance from the joint judgement of S152/2003[21] which refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’ or a ‘reasonably effective police force and a reasonably impartial system of justice’, indicating that the appropriate level of protection is to be determined by ‘international standards’.
[21] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26] and [28]
123. I first turn my mind to consider whether Pakistan has a reasonably effective and impartial police force. DFAT[22] notes the following:
[22] DFAT [5.1], [5.2] and [5.9]
a.DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will.
b.successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
c.Police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary.

124. The above description in the context of sectarian mob violence and punishment through customary law leads me to conclude that the state does not have a ‘reasonably effective’ police force and as such that he cannot be provide state protection.
125. I now turn my mind to consider whether there would be a modification of the applicant’s behaviour such that he would not face a real chance of serious harm. To reduce the level of risk he faces to less than a real chance, he would need to pretend to be a Muslim and to adopt Islamic practices even when he does not accept them. But the law requires that any modification of behaviour be reasonable and s 5J(3)(c)(i) expressly proscribes findings that such modification could be expected of applicants:
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:
(c) … 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;

126. As such I find that it is not a reasonable modification for the applicant to adopt a religious facade.
127. With regards to the other aspect of harm from the jirga’s rulings, as it is inherent, a decision already having been made and a modification of behaviour such as marrying his partner would not change the past, I find that there is no modification of behaviour that could reasonably be undertaken.
128. I find that the applicant cannot relocate to avoid harm. The applicant’s atheism would place the applicant at risk if he were to relocate. Were he to move to another location that was unfamiliar to him, he would face a heightened risk which would be compounded by other challenges including being a Pashtun in non-Pashtun dominated areas and as such he would be under greater attention from the community. Being new to a community would require the applicant to adapt and integrate into their ways but by not participating in religious activities the applicant would stand out and as such it would become known that he is an atheist. For the same reasons given above, the applicant would face serious harm.
129. Having accepted that the family had killed the applicant’s former husband by having sought out the man in Karachi which is on the other side of Pakistan from Peshawar, I find that under these specific circumstances relocation will not lead to the applicant not facing a real chance of serious harm.
130. For these reasons, the requirement under s 5J(1)(c) that the persecution relates to all areas of the country is met.
131. I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Pakistan such as the applicant have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
CONCLUSION
132. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
133. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Denis Dragovic
Deputy President

Volume 41, 2015,

[2024] AATA 2737

28 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction