2406795 (Refugee) - [2025] ARTA 1830

2406795 (REFUGEE) [2025] ARTA 1830 (25 JULY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Abdul Nasir Khaled (MARN: 0637156)
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2406795
Tribunal:General Member Rosa Gagliardi
Date:25 July 2025

Place:Australian Capital Territory
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
(i)that the first named applicant meets s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 25 July 2025 at 2:37pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Ahmadi Muslim – education, workplace and community persecution and legal restrictions – first applicant husband assaulted and family members friends killed – member of family unit wife – daughters and son-in-law/nephew granted protection visas on same grounds – country information – some religious/legal rights recognised – harassment, intimidation, persecution and violence – second applicant’s real chance of harm in own right as woman – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 March 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Pakistan (a matter the Tribunal accepts) applied for the visas on 22 December 2023. The delegate refused to grant the visas on the basis it was considered that they did not meet the refugee criteria or the complementary protection criteria under the Migration Act – s.36(2)(a) and s.36(2)(aa) respectively.
The applicants appeared before the Tribunal on 28 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], [Ms B], and [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicants were represented in relation to the review.
NB: Please note that the first named applicant and “applicant” are used interchangeably in this decision for ease of reference.
Evidence before the Department
Accompanying his protection visa application the first named application provided a detailed statutory declaration signed on 20 December 2023, setting out his claims:
·The applicant is by birth an Ahmadiyya Muslim who arrived with his family in Australia [in] November 2023 on a subclass 600 (Visitor) visa. His family hails from the District Sheikhupura, Pakistan. He married his first wife in [Year] but after giving birth to their daughters, [Ms A and Ms B], their mother died, and the applicant married the second named visa applicant in 2009.
·The applicant’s father was an active member of the Ahmadiyya community and served in the [Employer]. The family has historically suffered religious persecution from the local mainstream Muslim community. His father was posted in [Year] to Peshawar where the first named applicant’s family finally settled.
·The first named applicant attended a government high school where he did not observe any open religious persecution. That changed in 1973, however, when the Pakistani government constitutionally declared Ahmadis as non-Muslims. The Anti-Ahmadiyya Ordinance in 1984 was introduced and enforced by the dictator Zia ul Haq in Pakistan.
·The applicant then faced heightened discrimination and persecution, not only from fellow students but also from teachers. The anti-Ahmadiyya laws placed restrictions on his ability to practice his faith freely, placing his life and that of his family members in danger. The severe consequences of adhering to his religious beliefs were a threat to their safety and an impediment to their fundamental right to practice their faith without harm.
·His fellow students and later his colleagues often called him “Mirzai” a derogatory term to describe Ahmadiyya. His teachers took no action to protect him. He was not permitted to have his meals in the canteen as the canteen utensils would be considered dirty if they had been used by an Ahmadiyya and was prevented from praying in the school prayer room which was used by Muslims only.
·At school the applicant was assaulted by his classmates on several occasions.
·Upon completion of his study in [Year] the applicant did some private jobs and did a diploma in [Subject] until he started his job in the [Employer] in October 1984 as a civilian. During his employ with the [Employer] the applicant experienced hatred, discrimination, and non-cooperation from colleagues because of his religious beliefs. He tolerated the hatred until he spoke out in defence of his faith, and he was then transferred to [Work location] in Islamabad in 2016. Despite his attempts to work hard he was not considered for promotion due to his religious beliefs and this practice is still very common in Pakistan.
·He worked in the [Employer] for 38 years and on occasions wanted to leave due to the persecution, but he kept thinking he had to feed his family, and it was not an option. His supervisors demanded: he not perform his prayers in the prayer area; he not attempts to sit alongside his colleagues for lunch or dinner; he not greet others in the Islamic way to irritate people at work; despite working overtime he was not given any overtime pay as his supervisors never forwarded on his overtime records.
·No area in Pakistan was safe for Ahmadiyya community members.
·In addition, the first named applicant’s two daughters, [Ms A and Ms B] faced tremendous religious persecution during their study in Pakistan.
·After the applicant’s retirement in April 2022, the applicant moved out of his residence in the [Employer] and started living in [Town], Islamabad, where he was threatened by town Mullahs and many of the shops boycotted them knowing their religious background which led to constant stress. Consequently, they decided to move to Sheikhupura, Punjab in 2023.
·Recently it has been common in Pakistan to kill or punish the Ahmadis with false charges under the premise of anti-Ahmadiyya blasphemy laws.
·There has been a report recently that in Safdarabad in Sheikhupura, Muslims were preventing the Ahmadis burying their relatives in the common graveyard and some Ahmadiyya graves were demolished in the middle of the night.
·The applicants fear returning to Pakistan because they would continue to face the same harassment and discrimination, and the religious situation has now worsened as the Tehreek-e-Labbaik (TLP) has put out slogans to kill anyone who they believe is an infidel or non-Muslim who did not respect their Prophet. Recently, Ahmadiyya mosques have been demolished and damaged with the backing of the TLP clerics.
·The authorities are not interested in protecting Ahmadis in Pakistan. The Constitution and penal code were deliberately amended with the intention of prosecuting and punishing the Ahmadis declared non-Muslims.
To support their claims, the applicants submitted:
·Photographic evidence of attending a community gathering at their worship centre in the [Area of Australia].
·Advanced that they were invited to take part in Tablighi (Preaching) activities organised by the local [City] chapter.
·They were looking forward to attending the annual convocation of Ahmadiyya Community in July 2024.
·A news article link dated 22 September 2020, related to the treatment of the Ahmadis in Pakistan and killing of their family friend [Mr A].
·Evidence of the applicant’s Certificate of Service for the [Employer] and other material regarding his employment, retirement and pension certificate.
·A disciplinary warning letter for failure to comply with the provisions of discipline rule regarding authorised service accommodation.
·Quran Translation Examination with reference to the applicants’ Ahmadiyya faith.
·Evidence showing the applicants’ departure from Pakistan after being granted Visitor visas was due to the first named applicant suffering a heart attack in 2023. His father had died from a heart attack due to stress he experienced in the [Employer].
·[Organisation] letter confirming the applicants’ participation in the community.
·Birth certificates issued [in] October 2023, indicating their religion as Ahmadi.
·Certified translated copies of applicant’s contribution to Charity/Jamaat consistent with being a member of the Ahmadiyya faith.
The Department had concerns that the applicants’ passports did not state the parties were Ahmadiyya and indicated that their religion was “Islam”. In addition, the Department considered the claims made were like other claims involving Ahmadiyya members. It was also considered that the applicants had never had anything to do with Sunni extremists and did not have any covert political opinions which meant they would face a real chance of serious harm on return to Pakistan now or in the reasonably foreseeable future.
Evidence before the Tribunal
The hearing
The Tribunal put to the applicants that the Department found their application was similar to another application indicating that their claims may have been copied. The second named applicant was forthright in stating that this was because Ahmadis all experienced the same persecution in Pakistan – it was not unusual that other Ahmadis would make similar claims. What happened to the first named applicant was all true. The family had witnessed how much he had suffered because of the persecution. They had provided evidence the first named applicant had worked for the [Employer], where his role was to [do a job task] on the [workplace].
The first named applicant also stated that his daughters and his son-in-law were granted protection visas on the basis of being Ahmadiyya, so it was incongruent that the applicants’ own identity and religion was now being called into question. They were all present at the hearing to give evidence.
The first named applicant set out that he had suffered physical assault because of his religion, and he could hardly walk. This incident occurred in 2022. The applicant stated that he was so unwell from all the stress and antagonism shown to him that the applicant was hospitalised due to the stress, and it affected his heart; he had a heart attack.
When the second named applicant gave evidence, she stated that as an Ahmadi woman she would not be served at the grocery store and had to travel long distances to obtain their food. She stated that if her husband were to be killed in Pakistan how would she survive without anyone. The authorities could make false accusations against the Ahmadis.
The first-named applicant’s daughter, [Ms B], also gave evidence and stated that Ahmadi women in particular were distinguishable from other Muslims in terms of their headdress and other subtle differences in attire. She stated that they were harassed because they did not attend a regular mosque. She stated her parents had not intended to remain in Australia as they came to see their grandchild who was unwell. When they saw the extent of freedom in terms of religious freedom in Australia, they considered that it was a safer place for them to live. She stated close friends and family members had been killed in Pakistani due to their faith.
[Ms A], the first named visa applicant’s daughter, also gave evidence stating that the household registration was not fraudulent. Her father remarried and that is why they had two household registrations. The authorities had not documented that their biological mother’s death was not registered in NADRA. [Ms A]’s husband (who is also her cousin) gave persuasive evidence also of the family’s continued discrimination and harassment.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicants meet the definition of refugees as per s.36(a) of the Migration Act or in the alternative whether they meet the complementary protection criteria s.36(2)(aa).
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Do the applicants satisfy the refugee criterion for protection?
The Tribunal has considered the Department’s concerns about whether the applicants belong to and practise the Ahmadiyya faith. Given the extensive material submitted demonstrating they are recognised in both Pakistan and Australia as Ahmadis, and given the credibility of the applicants at hearing, the Tribunal accepts the applicants are of the Ahmadiyya faith.
More importantly, however, the first named applicant’s biological two daughters and son-in-law (cousin of one of the daughters) were granted refugee status in Australia on the basis of being Ahmadis (evidence sighted). This speaks to the credibility of the evidence provided by the daughters and the son-in-law who confirmed at hearing that the family, but the first named applicant in particular, had suffered serious harm in Pakistan by way of exclusion, physical assault, severe stress leading to stress, harassment and severe discrimination. The delegate making the primary decision in this case may not have had information before them that the first named applicant’s daughters were in fact also seeking protection on a similar basis, that is their religion and were being granted protection. To be fair, the applicants did not make such submissions either at the time of application.
The second named applicant has claims in her own right, that is, that she suffered discrimination and other harassment due to her religion as in purchasing groceries, storekeepers would refuse to serve her, and she would have to make a long journey to purchase food for the family’s survival.
The Tribunal finds that the identity and religion of the applicants as belonging to the Ahmadiyya religion is settled and the Tribunal accepts they belong to the Ahmadiyya faith, and that family and friends have been killed on account of their religious practices.
The Department also had concerns about their household registration documents but given the first named applicant’s first wife died and the authorities had not reflected this matter, the Tribunal finds that it makes no adverse inference from paperwork that might not have reflected that the second named applicant was part of the family.
In terms of the applicants’ claims being broadly similar to other narratives presented by applicants, the Tribunal accepts that while the facts may not be precisely similar (and the Tribunal has not had the opportunity to see the extent of the similarities), it is accepted that the extent of discrimination and harassment suffered by Ahmadiyya in Pakistan is uniform and it is not remarkable that Ahmadiyya would refer to the same type of treatment they have received in Pakistan. The Tribunal therefore places no weight on this matter.
Having accepted that the applicants have faced systemic discrimination, which is condoned by the authorities and is pervasive across Pakistan, the real chance is future-focussed and the Tribunal must assess whether there is a real chance that the applicants would face serious harm now or in the reasonably foreseeable future were they to return to Pakistan.
Relevantly, the Tribunal has had regard to contemporary country information which confirms the applicants’ claims. The Department of Foreign Affairs and Trade (DFAT) reports:
3.84 Ahmadis are not readily identifiable by their appearance, language or names. However, it was possible some Ahmadi women could be identified by those keenly aware of the minor differences in their Ahmadi Islamic dress. Many Ahmadis do not publicly identify themselves for fear of discrimination and maintain a low profile to avoid societal discrimination and violence. 3.85 Official religious discrimination of Ahmadis in Pakistanis is pervasive and well-documented. Since 1974, Ahmadis were identified as ‘non-Muslims’. 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
3.86 Ahmadis are the only group in Pakistan that identify as Muslim but are given ‘non-Muslim’ religious minority status. As such, authorities and the general public commonly view public acts of worship by Ahmadis as blasphemy. According to in-country sources and international media, Ahmadis have been charged under sections 298A and 298C of the Pakistan Penal Code (1860) for blasphemy for reciting the Quran and ‘posing as Muslims’. In-country sources told DFAT Ahmadis could not effectively dispute these charges because providing counternarratives based on their religious beliefs could constitute ‘preaching’, which was also considered blasphemy...
3.87 Ahmadis had been charged for breaching the Prevention of Electronic Crimes Act (2016), which in-country sources stated was designed to curb ‘hate speech’ but was used in practice to protect majoritarian interpretations of Islam. In-country sources told DFAT 16 Ahmadis had been charged under the Prevention of Electronic Crimes Act (2016) since 2019 and some were still awaiting trial as at 2024. Six of these 16 Ahmadis were currently on remand in October 2023, and five had remained in prison for over three years without formal trial. Most of the 16 Ahmadis were charged with breaching Section 11 of the Prevention of Electronic Crimes Act (2016) for ‘electronic forgery’ for using an ‘information system, device or data, with the intent to cause damage or injury to the public or to any person’. Section 11 includes punishment by imprisonment ‘for a term which may extend to three years, or with fine which may extend to two hundred and fifty thousand rupees, or with both’. In-country sources told DFAT a number of Ahmadi leaders had pending arrest warrants against them for breaching the Prevention of Electronic Crimes Act (2016).
3.88 The High Court and Supreme Court have made some favourable judgements regarding Ahmadis, including to allow Ahmadis to practice their faith at home. For example, former Supreme Court Chief Justice, Qazi Faez Isa, issued a ruling on 8 February 2024 about the right of the Ahmadi community to print and disseminate the Tafseer-e-Sagheer, a shorter version of the 10-volume Tafseer-e-Kabeer, the commentary to the Quran by Mirza Basheer-ud-Din Mahmood Ahmad, the son and successor of Mirza Ghulam Ahmad. Former Supreme Court Chief Justice, Qazi Faez Isa, stated the principle ‘no compulsion in religion’ under Article 20 of the Constitution meant ‘every citizen shall have the right to profess, practice and propagate his religion… fundamental rights [that] cannot be derogated from, circumvented or diluted’. Chief Justice Isa ordered the defendant, who had remained in jail for thirteen months, immediately released against the posting of a symbolic bond. Prior to this ruling, Mubarak Ahmed Sami, an Ahmadi, was arrested on 7 January 2023 for disseminating the Tafseer-e-Sagheer in breach of a 2021 Punjab law prohibiting the printing and distributing of ‘heterodox’ editions and commentaries of the Quran. Despite Chief Justice Qazi Faez Isa’s 2024 rulings which protects some of the religious rights of Ahmadis, in-country sources said many were not implemented by local authorities who remained prejudiced against Ahmadis. Domestic media reported Chief Justice Qazi Faez Isa received a number of death threats following his 2024 ruling, some of which came from TLP supporters.
3.89 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.[1]
[1] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025,

30. In addition, most recently DFAT has also reported:
3.91 Ahmadis are regularly subjected to societal violence based on their faith and have had their places of worship damaged and desecrated. For example, local media reported in December 2024 Tayyab Ahmad was reportedly killed in Rawalpindi for his Ahmadi faith by an assailant using an axe. Local media reported in March 2024 a leader of the Ahmadi community in Bahawalpur District of Punjab was shot dead by unidentified assailants while out for a walk. In 2024, Amnesty International reported a number of Ahmadi mosques were damaged and graves desecrated by Sunni sectarian religious groups. In 2023, international media reported 42 Ahmadi places of worship were damaged in Pakistan and 100 Ahmadi graves in Punjab desecrated by Sunni sectarian religious groups. The US Department of State’s 2023 Pakistan Report on International Religious Freedom stated human rights advocates and Ahmadiyya community leaders stated police and local authorities rarely took action to prevent attacks on Ahmadi mosques or to punish assailants who vandalised or destroyed Ahmadi mosques, minarets, and gravestones. The 2023 Pakistan Report on International Religious Freedom also reported police participated in or even led the attacks against the Ahmadi community, and local authorities generally prevented the repair or rebuilding of minarets at mosques, gravestones with Islamic verses, or other structures with identifiably Islamic features.
3.92 Ahmadis have been subjected to organised hate campaigns based on their religion by Sunni sectarian religious groups. According to in-country sources, the TLP organised public rallies to protest against any weakening of legal discrimination against Ahmadis, and religious scholars and lawyers collaborated to bring blasphemy charges against Ahmadis in 2023. According to in-country sources, members of parliament and judges regularly spoke out against Ahmadis to bolster their own image in the community in 2023. In-country sources told DFAT the military leadership promoted messaging to stop targeting Ahmadis. Senior military personnel spoke out against targeting Ahmadis in 2023 because the violent actions of TLP had received negative international attention at a time the country was looking for increased financial assistance...[2]
[2] Ibid.

There were calls by Amnesty International to end cyclical harassment and persecution of the Ahmadiyya community as recently as June 2025, and the reports indicate that the religious minority had been subjected to escalating intimidation, harassment, and attacks in the lead up to Ei-ul-Adha due to take place on 7 June.[3] It is reported that local and regional authorities across the country took measures to prevent Ahmadis from celebrating the festival, including forcing individuals to sign affidavits to refrain from Eid prayers and rituals, and issuing orders to the police [4] and:
[3] ‘Pakistan: End cyclical harassment and persecution of minority Ahmadiyya community’, 5 June 2025, Amnesty International, End cyclical harassment and persecution of Ahmadis in Pakistan.
[4] ‘Pakistan: End cyclical harassment and persecution of minority Ahmadiyya community’, 5 June 2025, Amnesty International, End cyclical harassment and persecution of Ahmadis in Pakistan.
Since mid-April, there have been multiple cases of violence by majoritarian religious groups against the Ahmadiyya community in which at least three people have been killed. This follows similar episodes of violence and harassment in the lead up to, during and after Eid last year as documented by Amnesty International.
“The violence and harassment targeted against Ahmadis ahead of the Islamic holiday of Eid-ul-Adha is taking place against the backdrop of ongoing repression by the Pakistani authorities,” said Isabelle Lassée, Deputy Regional Director of South Asia at Amnesty International.
“Not only are local authorities and local enforcement agencies across Pakistan failing to protect Ahmadis, they are themselves actively restricting their rights to freedom of belief and religion”.
….
Amnesty International has examined more than 15 affidavits, or surety bonds signed by Ahmadis undertaking to refrain from either purchasing animals or performing the customary animal sacrifice to mark Eid-ul-Adha. Some affidavits even contained commitments that the individuals would refrain from offering Eid prayers.
….
Amnesty International has also reviewed multiple notices issued by various District Commissioners in Lahore, Karachi, Mirpur, Sargodha and Rawalpindi directing the police to take action against Ahmadis found to be celebrating Eid. These orders were issued in response by individuals belonging to religious groups such as Tehreek-e-Labbaik Pakistan (TLP) and legal associations, including bar associations.
….
In 2024, the UN Committee on the Elimination of Racial Discrimination expressed concerns about “harassment and intimidation of Ahmadi Muslims in the period preceding and during Eid al-Adha.” The Committee also raised concerns about the impunity afforded to perpetrators of this harassment and intimidation.[5]
[5] Ibid.

32. Further:
A briefing for the All Party Parliamentary Group on Freedom of Religion or Belief (APPG FoRB) by the UK Ahmadi Muslim community noted that, on 7 September 2024, the ‘far-right religious party Jamiat Ulema-i-Islam (JUI-F)’ held a large gathering in Lahore to commemorate the constitutional amendment that declared Ahmadis as non-Muslim. The report noted that ‘several clerics…delivered inflammatory speeches’, which included declaring Ahmadis were liable to be killed.[6]
[6] UK Government, Guidance, Country Policy and information note: Ahmadis, Pakistan, March 2025, updated on 2 June 2025, Country policy and information note: Ahmadis, Pakistan, March 2025 (accessible) - GOV.UK.
33.In terms of the treatment of women, in August 2024, the International Human Rights Committee (IHRC) commented that ‘Ahmadi women and girls can’t have any type of activity such as prayers or sports – they are not allowed – they are very fearful – they are more easily identifiable than men by their clothing. Ahmadi women and girls do not attend mosque for their own safety and security given risk increases’.[7]
[7] Ibid.
34.As one writer has commented the Ahmadi Muslims are not just deprived of freedom of religion:

Governments, NGOs and international organisations have drawn attention to the persecution of the Ahmadiyya, highlighting how this persecution violates international human rights law. Rights violated include freedom of religion, freedom of expression, the right to life, and cultural and social rights such as the right to work and education.[8]

[8]
35.The country information overall shows that persecution of the Ahmadiyya community in Pakistan has not abated and that in fact it is escalating.[9] The Tribunal accepts that it would not be reasonable for the applicants to relocate to any part of Pakistan as the attitude of the majority Muslim community is overwhelmingly antagonistic in every part of Pakistan. The Tribunal also accepts that the authorities are complicit in the persecution of the minority group for political gain and that law enforcement authorities are also implicated in the persecutory conduct which goes unpunished.
[9] ‘Pakistan: Authorities must end escalating attacks on minority Ahmadiyya community’, 21 June 2024, Amnesty International,
36.On the basis of the information before it, the Tribunal finds that there is a real chance that were the applicants to return to Pakistan now or in the reasonably foreseeable future they would face serious harm by way of threats to their lives or liberty, and significant physical harassment and ill-treatment. The Tribunal finds that the applicants have a well-founded fear of persecution based on the extensive country information supporting their claims.

37.The first named applicant is particularly vulnerable as he now has physical ailments that means he would be less likely to withstand any continued harassment. The Tribunal also accepts his wife would also face a real chance of harm in her own right, given the fact that Ahmadi women are recognisable by the way they dress.

Conclusion

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:
·(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
·(ii) that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Representative:   Mr Abdul Nasir Khaled (MARN: 0637156)
Date of hearing:     28 May 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

‘The Ahmadiyya in Pakistan: Religious Persecution, Human Rights and Islam’, Zaki Rehman,
22 July 2024, Oxford Human Rights Hub,