2411388 (Refugee) - [2025] ARTA 817

2411388 (REFUGEE) [2025] ARTA 817 (5 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mx Gretel Emerson
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2411388
Tribunal:Shahyar Roushan
Date:5 February 2025

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 05 February 2025 at 1:30pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – religion – Sunni Muslim – particular social group – gay men – Muslim Pakistani man who is gay, opposed to elements of Islam and does not practice Islam in the manner required by religious authorities in Pakistan – victim of violent sexual and physical assault – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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
BACKGROUND

The applicant is [age] years old. He is a national of Pakistan. He arrived in Australia on [date] February 2020 on a Student visa (subclass 500).
On 21 August 2023, the applicant submitted to the Department an incomplete application for a Protection visa, leaving several required fields unanswered.
On 8 September 2023, the Department wrote to the applicant and requested that he answer all questions in both Part B and Part C of the application form in order for his application ‘to be claimed as valid’.
On 12 September 2023, Ms [A] of Refugee Advice & Casework Service (RACS) forwarded to the Department the completed Part B and Part C of the applicant’s 866 form. In her covering email, Ms [A] stated that ‘RACS has assisted [the applicant] in posting the original 866 form and also in preparing this completed Part B and C. This is one off assistance and RACS is not representing the client.’
The application was refused on 24 April 2024 by a delegate for the Minister of Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act).
On 10 May 2024, the applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT). On the same day, he appointed Mx Gretel Emerson of RACS as his representative.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDNECE
Evidence before the Department
Protection visa application
Based on the information provided in his Protection visa application, the applicant, a Sunni Muslim, was born in [Punjab], Pakistan. He has [number] brothers and [number] sisters. His mother and one brother are deceased. Apart from one sister who lives in [Country 1], the rest of his family reside in Pakistan. The applicant lived at a single address in in [Punjab] from birth until his departure for Australia. After finishing school in 2008, he completed a Diploma [in] 2011 and in 2018 obtained a Bachelor [degree]. He subsequently travelled to Australia to study towards a [qualification] at [University 1].
In response to questions in relation to his reasons for claiming protection in Australia, the applicant claimed to fear harm because of his ‘sexuality as a gay man’. He claimed to have been threatened with harm because of his sexuality, he was unable to obtain help from the authorities and he would be unable to internally relocate as ‘there is nowhere safe to go’. He added he would ‘provide more detail at a later date’.
The interview
The applicant was not invited to attend an interview with the Department.
The delegate’s decision
The delegate referred to the lack of detail in the application and absence of supporting evidence and expressed ‘serious concerns in regards to the genuineness of the applicant’s Protection visa application’. The delegate was of the view that despite the opportunity available to him, the applicant had failed to provide information to support his application. The delegate was not satisfied that the applicant’s claims were credible and rejected his claims entirely. The delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there is a real risk they will suffer significant harm under s 36(2A) of the Act. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Pre-hearing submissions
On 1 August 2024, Mx Emerson provided a submission to the Tribunal and attached a number of documents in support of the application for review, including a Statutory Declaration by the applicant, copies of extracts of the applicant’s bank statements, medical reports and supporting letters.
In their covering submission, Mx Emerson expressed ‘significant concerns regarding the Department’s finalisation of the Application without a request for further information despite indications from both RACS and [the applicant] that a statement of his protection claims was to be submitted.’ The submission noted that RACS had raised their concerns with the Department and had been advised that ‘the handling of this case seems to be (at least on the fact of it), outside of [the Department’s] usual practises.’ Mx Emerson disagreed with the delegate’s ‘characterisation’ of the applicant and stated:
The Department’s assessment of [the applicant] made with limited information is unnecessarily negative and makes assumptions in relation to his motivations and reasons for behaviour which are not supported by the facts of this case. During the 8 months between lodgement of the Application and the refusal decision, [the applicant] was simultaneously struggling with this mental health and working consistently on his statement with RACS and with lawyers at Gilbert + Tobin who assist RACS on a pro bono basis. [The] Department’s characterisation of [the applicant] as an unmeritorious applicant who had the ability to provide further information in previous applications gave no consideration to the work [the applicant] was doing with lawyers to develop his statement while also struggling severely with his mental health.
It was submitted that the applicant has a well-rounded fear of persecution for the reason of his membership of the particular social group of gay men or gay Muslim men in Pakistan who are opposed to ‘elements of Islam and do not practise Islam in the manner required by religious authorities in Pakistan’. The persecution he fears involves ‘threats to his life, physical, sexual, and verbal abuse and arrest and violence by authorities’ and extends to all areas of Pakistan. The authorities would be unable to adequately protect him, and effective protection measures are not available.
In support of their submission, Mx Emerson referred to country information sourced from DFAT, UK Home Office, Human Rights Watch and Human Dignity Trust.
The applicant’s Statutory Declaration
In his detailed Statutory Declaration, deposed on 6 June 2024, the applicant provided the following information.
He fears being ‘gravely’ harmed and suffer serious persecution for being a ‘gay man in Pakistan’ and ‘a Muslim Pakistani man who is gay, opposed to elements of Islam and does not practice Islam in the manner required by religious authorities in Pakistan’. He fears being ‘attacked, assaulted, sexually assaulted, tortured, imprisoned and/or killed by Pakistani society, Pakistani authorities’, his ‘family and/or others hostile to LGBTQIA+ people in Pakistan,’ because of his ‘sexual orientation’. He will be harmed regardless of where he lives in Pakistan because the communities are ‘intolerant of gay men’.
He is a citizen of Pakistan, and he has no legal right to enter and reside in any other country. His father, who was born in India, lives in Pakistan. Prior to his retirement he owned and ran a [store]. His mother died in around 2015. He was raised as a Muslim, but he no longer practices his religion. His family are all practising Muslims ‘who adhere to the practices required by religious authorities in Pakistan.’
He has [number] brothers and [number] sisters. His siblings are all married. All of his family members reside in Pakistan except for one of his sisters who lives in [Country 1]. In his original student visa application, he had claimed that he was ‘close’ to his family and ‘adored’ them. He was only close to his mother and such ‘phrasing’ was ‘suggested’ to him by his ‘agent’. He had a difficult relationship with his brothers and was not close to his father or sisters. His family supported the student visa application as studying in Australia was seen as an ‘honourable thing to do’.
He found it difficult to obtain employment after the completion of his bachelor’s degree. Between November 2018 and October 2019, he had an internship for two days a month at a [company]. In Australia, he has been working as an [occupation].
He had ‘only ever been attracted to men and [has] only been physically intimate with men’. This attraction began when he was about [age] or [age] years old. By age [age], he was certain he was attracted to boys but was unaware what it ‘meant to be gay or how gay people were regarded in Pakistani society’. He was [age] when he learned his ‘attraction to men was not accepted and was a crime’ after he told one of his sisters that he wanted to marry a man. His elder brother overheard the conversation and angrily yelled at him. His brother told the rest of the family, who all reacted the same way. He was ‘shocked, upset and embarrassed’ by his family's reaction. He felt ‘disgusted’ and ‘very guilty’ and decided to ‘suppress’ his feelings and ‘sexuality’ and no longer shared his thoughts and feelings with his family. Despite attempting to suppress his feelings and hide his sexuality in social settings, there were ‘things’ he could not change about himself, such as ‘the more “feminine” way [he] presented, walked, and talked’, and his interest in ‘things’ ‘that were considered women’s activities in Pakistan.’ He was reminded by his family that his characteristics and interests ‘were abnormal and something to be ashamed of.’ He was criticised for being different and not adhering to what was believed to be the religious and culturally acceptable presentation of masculinity. This also impacted his mental health, his confidence, and his ability to socially engaged with others.
He found life in Pakistan as a gay man very difficult. He was always afraid to be himself and faced difficulties in numerous situations. He was teased and bullied throughout his schooling, but his experiences at university were ‘particularly bad’. He was laughed at, bullied, physically harassed, and assaulted by his fellow students and by some of his teachers on a daily basis. He was called names ‘like pansy, faggot and she-male’. He was excluded from social groups and school programs and made to ‘feel filthy’.
In his employment search for administrative jobs, he believed ‘some people formed an initial impression’ of him as gay based on the way he looked and talked, and others had heard about his ‘queerness’ from other people. He was sometimes ridiculed and asked why he ‘talked like that.’
In Pakistan, homosexual acts are punishable by ‘whipping, long jail terms, or even death under Sharia law.’ In Islam, homosexuality is punishable by death. Pakistani society is intolerant of gay people and members of the community ‘take things into their own hands by shaving the heads of people caught in sexual acts with other men, painting their faces black as a way of humiliating and shaming them and beating them, in addition to reporting them to the authorities.’ Homosexuals are also ‘assaulted, kidnapped, raped and killed by members of the community without punishment.’
He made ‘some gay friends’, but not many. He found it hard to make friends with people who weren’t gay as they bullied him and could not relate to him. The first gay friend he made was when he was in around tenth grade and his name was [Mr B]. He knew [Mr B] since childhood, and they were friends because they had similar likes and dislikes. Like the applicant, [Mr B] was also more ‘feminine’ and didn’t like talking about cricket and girls, and they had similar experiences trying to hide themselves from their families, particularly from their brothers.
When he was around 15 years old, he met a person named [Mr C] who lived nearby. He was about five years older, and the applicant felt attracted to him. Casual flirtations evolved into phone communications, physical meetups and then their first kiss in [year]. Their intimacy for the first two to three years was limited to ‘kissing and cuddling’. [Mr C] subsequently became involved with one of the applicant’s gay friends and their relationship deteriorated. Their relationship rekindled in late [year] when [Mr C] returned to Pakistan from [Country 2] where he worked as a [occupation]. The relationship ended when the applicant came to Australia. He has had ‘other intimate encounters with men in Pakistan’. He sometimes met up with other gay men, but it was dangerous.
In [year], when he was eighteen, he had a sexual relationship with a man who ‘may have been married’. He met this man at a [factory] and a park, and they had exchanged numbers. When they met up at the [factory], it was ‘raided’ by three men. The older man escaped but the applicant was ‘forced’ to have ‘oral sex and sexual intercourse with them’. A gun was shown to him by one of these men who told him he would ‘shoot’ him if he ‘didn’t do what they wanted’. He didn’t tell his family or report this because he was ‘scared’ ‘they wouldn’t believe’ him or ‘blame’ him or ‘punish’ him. He learnt later from a friend that the situation with the three men had been filmed and was being publicly shared around the ‘local area’. The men involved were ‘politically powerful people with connections to the police who had done this to other gay men’. When the men who ‘attacked’ him would see him they would ‘harass’ him and ’try to stop’ him ‘grab’ him and ‘kidnap’ him. He was ‘extremely depressed’ after this incident.
When he was 22 years old, he was in a car late at night with a man he had met in an online gay chat room. The car was parked in a quiet area at an abandoned site. They were kissing when some people started knocking and banging on the windows and yelling loudly. The man he was with was able to start the car for them to ‘leave’. When he was around 23 years old, he went to the park one evening to meet ‘someone’ and he later heard from a friend that others had been caught by members of the community in the same area recently. Those caught were attacked, their heads were shaved and humiliated. After that he stopped going to the park.
He tried to rent a place at one point but was not successful. A friend who had access to ‘a place’ gave him the keys, but another friend recommended against it, saying it was too risky if neighbours saw men going in and out. These experiences ‘scared and intimidated’ him, and his mental health suffered significantly.
Members of his family are ‘more moderate’ in the way they practice Islam, except his eldest brother who is very religious. His family believe that homosexuality is a sin and that homosexuals go to hell. When he was younger, he felt ‘constant pressure’ from his family to pray to guide him to the right path and to attend the mosque. This pressure has persisted and even now when he speaks to his family over the phone, they ask him to pray and fast, believing that his behaviour will change, and he will be ‘protected from going to hell’.
His eldest brother was ‘very controlling’ and at some point gave him ‘tablets’ to attempt to ‘change’ him. He was also bullied by his eldest brother’s friend. For around six months, a man who he ‘identified as religious because of his long beard’ would ‘follow’ him and ‘curse’ him.
He was always scared of becoming a target of religious people in Pakistan and feared being killed. He still considers himself to be Muslim, however, he is ‘more moderate in his beliefs’ and does not ‘practice Islam in the strict way that is expected in Pakistan.’ Even in Australia, he is ‘weary of people who practice Islam’ because of their views in relation to homosexuality.
He decided to leave Pakistan because his ‘situation had become very bad’. He was aware that homosexuality is not a crime in other countries, including in Australia. He decided to come to Australia because he believed he would be safe here and would have the freedom to be himself and express himself. When he arrived here in February 2020, he often attended ‘gay night clubs’ or a ‘gay sauna’ including ‘[names deleted]. He signed up to [App 1] and met up with several men he met on the app. From ‘around September 2020 to December 2021 he was in a relationship with [a] man he met on [App 1]. This man was a [student] at [University 1]. A small number of people, including the [a staff member], [Ms D] , knew about the relationship.
From early 2023, he often attended ‘[a group] at [University 1]. The group met weekly on Wednesdays to discuss their experiences, issues they faced and how to locate help and ‘allies’. He did not attend earlier, fearing that that someone from the Pakistani community would see him and ‘spread rumours back home.’ The group gave him ‘confidence’ about his ‘sexuality’. His attendance became less frequent when he needed to ‘juggle’ his studies and [job].
Although he has social media accounts, he does not post ‘queer’ content on his social media in ‘fear’ his family would see it. One of his sisters once told him to remove a [video] he made showing him dancing with a gay man at the beach, which he did.
In 2022, through the Student Advocacy Officer at the [University 1] Student Advocacy Service, [Ms E], he learnt he could make an application for a Protection visa based on his ‘sexuality. When his mental health declined in 2023 in fear of returning to Pakistan at the end of his student visa, he spoke with [a named woman] and [Ms H][a] counsellor at [University 1]. They ‘brought up’ the possibility of a protection visa and contacted organisations for assistance. RACS ‘eventually’ responded to say it could assist.
He has been diagnosed with ‘anxiety and depression, which’ he believes to be ‘directly related’ to his ‘experiences as a gay man in Pakistan’. He has been hospitalised for ‘extreme anxiety attacks’ and this began in late 2021 after his relationship with the [student] ended. At the hospital, he was distressed and asking for his boyfriend.
In around March 2020, he reached out to Ms [D] because he needed help changing his course. He slowly got to know her and told her a bit about himself and his personal life. Ms [D] then referred him to the university counselling service for his mental health. He initially saw counsellor [name] and continued to have appointments with her until the end of 2020. He then had appointments with [another counsellor] in 2021 and subsequently started seeing [Ms H] in 2022. He was introduced to a university psychologist, [Mr I], in August 2022 and has been attending regular counselling sessions with him since May 2023.

On 21 August 2023 he lodged his Protection visa application with RACS’ assistance. His visa application stated that he would provide more detail about his claim at a later date. On the basis of advice from RACS, he ‘understood’ he ‘would receive some warning before the Department made its decision’.
On 2 November 2023, he received ‘the FOI release from the Department’ and RACS advised that he ‘could now have an appointment to begin on [his] statement’ and on 8 November 2023, he was informed that he was scheduled to meet lawyers from Gilbert + Tobin to assist with the preparation of his supporting documentation. Between 28 November 2023 and 2 May 2024, he attended several meetings and discussions with his lawyers working towards preparing his statement and supporting documents. However, on 10 May 2024, he was informed by RACS that the Department had made a decision to refuse his Protection visa application on 26 April 2024. He was unable to find any email correspondence from the Department notifying him of his decision.
Letters of support
In a letter, dated 7 December 2023, [Ms D] , [a] Specialist at [University 1], stated that she had met the applicant in March 2020, and he had subsequently ‘reached out for support with his studies due to challenges he was experiencing with his mental health.’ Ms [D] confirmed that the applicant had disclosed to her ‘the adversity he faced in Pakistan as a teen and university student due to his sexuality, early in our sessions and continues to discuss casual relationships he initiates using social networking apps for people who identify as LGBTI.’ The applicant also shared with her information regarding ‘an ongoing relationship with another male which commenced in September 2020 and ended in December 2021.’ Ms [D] also confirmed that the applicant ‘has frequented the university’s [group] which is a designated Safe Space for queer and questioning members of [University 1].’
In her letter of support, dated 8 December 2023, [Ms H], a Counsellor at the [University 1], stated that she had provided counselling to the applicant on six occasions between March and July 2023. Previously, he had ‘three episodes of care’ with [University 1] Counselling between April and December 2020, between June and November 2021 and between March and August 2022. During these sessions, the applicant was observed ‘to be significantly impacted by poor social support, feeling excluded and isolated due to him identifying as gay.’ He also ‘reported significant discrimination, bullying and harassment from his family and friends due to his sexuality. This has caused significant stress and impacted his quality of life.’
[Mr I], Provisional Psychologist at [a] Clinic, also provided a letter of support, dated 14 December 2023. Mr [I] stated in his letter that the applicant commenced ‘his ﬁrst episode of care’ on 2 August 2022, concluding on 6 September 2022. He returned for a ‘second episode of care’ commencing on the 29 May 2023. Mr [I] noted that he has seen the applicant for a total of 25 sessions this year, concluding on 12 December 2023. He confirmed that during their sessions, the applicant had disclosed that ‘he identiﬁes as part of the LGBTQ community and as a result has faced signiﬁcant adversity and discrimination in Pakistan throughout his teenage and young adult years.’ He also reported that ‘he has engaged in same sex relationships and has attended LGBTQ university events in Australia.’
Medical reports
Mx Emerson submitted a number of documents relating to the applicant’s mental health and hospital admissions since 2021.
An Ambulance Electronic Medical Record, dated 25 November 2021, shows the applicant was transferred to the Emergency Department of [a] Hospital on the same day after being encouraged by his ‘support worker’ to report to the hospital.
According to a mental health assessment report dated 25 November 2021 and authored by [a] Registered Nurse at [the] Hospital, the applicant had presented to [the] Hospital for a mental health review on the advice of his student support advisor ([Ms D]). He is ‘known to the MHS from a previous PECC admission in similar circumstances’ in April 2021. The report noted that the admission had been triggered by the applicant seeing his ex-partner with another man while [working] on the previous evening. Despite the relationship ending seven months earlier, the applicant has not been able to ‘move past this relationship and it was shock to see [his ex-partner] so happy.’ He was ‘very upset, started to experience feelings of worthlessness and then suicidal thoughts.’ The applicant reported ‘frequently’ feeling ‘suicidal when he is distressed or lonely to varying degrees.’ According to [the nurse], the applicant had indicated that he hoped to remain in Australia following his degree ‘to work’ and he did not ‘feel safe in his home country due to his sexuality and previous experienced sexual assault. The risk assessment concluded he had a ‘low current acute risk’ that ‘longitudinally at increased risk of harm to self through misadventure due to trauma background, personal vulnerabilities in maladaptive coping mechanisms’. ‘These chronic risks of harm are dynamic, highly changeable and unpredictable and likely to increase in times of change or distress’. The applicant was discharged on the same day with follow-ups on 27 and 29 November 2021.
Other documents
Mx Emerson also submitted the following documents:
·Screenshot of the applicant’s [bank] statement, covering transactions between 4 May 2021 and 11 May 2021. The statement includes record of a payment to an establishment named ‘[name] in [a suburb], dated 4 May 2021.
·Screenshot of the applicant’s [Bank] statement, covering transactions between 24 September 2024 and 27 September 2024. This statement also includes record of a payment to [a venue] on 26 September.
·Screenshot of the applicant’s [Bank] statement, covering transactions between 1 June 2023 and 3 June 2023. As with the previous statements, this statement includes record of a payment to [the same venue] on 26 September.
·Screenshot of [the venue’s] Privacy Policy, emphasising the protection of cliental information.
On 29 November 2024, Mx Emerson made a request for priority to the Tribunal on the applicant’s behalf. The request detailed the deteriorating health of the applicant and him experiencing homelessness. In a letter of support, dated 28 November 2024, [an organisation], stated that the was applicant experiencing homelessness and suffering from mental health conditions. The applicant began engagement with their service on 19 November 2024.
On 2 December 2024, the Tribunal granted the priority request.
On 11 December 2024, Mx Emerson forwarded to the Tribunal a pre-hearing submission and recent medical reports regarding the applicant. In their submission, Mx Emerson referred to their request for priority processing submitted on 29 November 2024 and noted that the applicant is currently experiencing homelessness and declining mental health. He was admitted to [a] Hospital on 27 November 2024 for suicidal ideation. He was subsequently transferred to [another]r Hospital, before being discharged on 29 November 2024.
Under the cover of their submission, Mx Emerson provided copies of hospital admission records and discharge reports relating to the applicant’s recent admission. These reports indicate that during the course of his brief admission to [the] Hospital, the applicant had received mental health care for suicidal ideations. A mental health registration sheet completed during his admission indicated that the applicant had engaged with mental health services ‘several times over the past three years’. These included his admission in April of 2021, where he had presented at the hospital ‘in crisis’ ‘marked by suicidal ideations’ due to the breakdown of his romantic relationship with his male ex-partner. In May 2022 he presented again in distress and, despite voluntarily accepting to be admitted to the mental health unit, requested a discharge shortly after.
Clinical observations reported during his hospital admission assessed the applicant as a ‘mentally disordered person.’ His discharge referral of 29 November 2024 noted he had ‘acute suicidal crisis abated’. In the mental health progress highlighted the applicant's experiences with homelessness and decline of mental state due to lack of financial means, homelessness, suicidal crisis state and fear of persecution if returned to Pakistan. A mental health safety plan was produced for the applicant prior to his discharge.
In a Mental Health Consultant Review, [a] nurse, noted that the applicant had reported feeling depressed and anxious due to his current circumstances. The applicant had also disclosed that he had concealed his sexual orientation and effeminate traits due to cultural pressure. Although not physically abusive, his parents responded with hostility to gender non-conforming behaviours like playing with dolls or wearing makeup. His mother was kind but his father critical. After completing year 12 and a bachelor’s degree in Pakistan amid persistent bullying, he moved to Australia at age [age] seeking freedom from cultural constraints. He reported feeling able to express himself authentically in Australia.
On 16 December 2024, the Tribunal requested the provision of documents, namely photographs of the applicant and a copy of the applicant's passport. The representative responded to this correspondence on the same date with scanned copies of the applicant's NSW photo card and licence, his passport and a personal photograph of the applicant.
The hearing
The applicant appeared before the Tribunal on 16 January 2025 to give evidence and present arguments. Mx Emerson also attended the hearing. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
Post-hearing submissions
Following the hearing, Mx Emerson submitted screenshots of the applicant’s [App 1] account on his mobile telephone and messages exchanged between him and other males on the dating app.
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
For the following reasons, I have concluded that the decision under review should be set aside and remitted for reconsideration.
I found the evidence submitted in support of the applicant’s claims to be highly persuasive. In particular, I found the applicant’s oral evidence clear, credible and forthright, and the manner of his presentation at the hearing compelling. His testimony was entirely consistent with his detailed statutory declaration and corroborated by the supporting documents provided, including the medical reports, which predated his application for a Protection visa, and the letters of support referred to above. I accept the applicant’s claims without reservation.
I accept that the applicant has been exclusively attracted to males since becoming aware of his sexual orientation from a young age and has only entered into same-sex relationships in Pakistan and Australia. I accept the applicant’s evidence of having experienced enduring severe harm in Pakistan, including violent sexual and physical assaults, sustained harassment (sexual, physical and verbal), bullying, discrimination, social exclusion and public humiliation.
According to DFAT’s January 2022 Country Information Report in relation to Pakistan:
3.101 Sexual activity between men is illegal in Pakistan. Section 377 of the Penal Code outlaws consensual ‘carnal intercourse against the order of nature with any man, woman or animal’, punishable by prison sentences of 2-10 years. Uncertainty around the definition of ‘carnal intercourse’ makes it unclear whether this provision applies to sexual activity between women. Section 377 is rarely enforced, although there are reports police threaten LGBTI people with it to extract bribes or sexual favours.
3.102 Homosexuality is deeply taboo in Pakistani society. While cities such as Karachi reportedly have an active underground LGBTI scene, people coming out as gay or lesbian in Pakistan are likely to face ostracism from their families, forced heterosexual marriage, discrimination, bullying and violence. There are reportedly pockets of acceptance among urban, upper-class communities, but even wealthy individuals face discrimination, and their families may force them into a heterosexual marriage to preserve the family’s reputation. In April 2014, Muhammed Ejaz, a man from Lahore, killed three gay men he had met online. He told police he wanted to send a message about the evils of homosexuality…[1]
[1] DFAT, DFAT Country Information Report – Pakistan, January 2022.
DFAT assesses that ‘gay and lesbian people in Pakistan face a high risk of official and societal discrimination and a moderate risk of violence.’[2] LGBTI people in general often attempt to reduce their risk of violence and discrimination by hiding their sexual orientation or gender identity from family and others.[3]
[2] Ibid.
[3] Ibid
In its most recent Human Rights Report, US Department of State noted that Pakistani law prohibits discrimination against LGBTIQ people in Pakistan, but male same-sex sexual conduct is a criminal offence.[4] The report also noted that in 2023 LGBTIQ people in Pakistan rarely reveal their sexual orientation or gender identity in the public sphere, crimes against them often go unreported, and police generally take little action when they receive reports.[5]
[4] US Department of State, Human Rights Report – Pakistan, Bureau of Democracy, Human Rights, and Labor, United States Department of State, 22 April 2024,
[5] Ibid.
The International Commission of Jurists (ICJ) has reported that complaints were filed in few cases of abuse of transgender people because police and law enforcement officials, who ‘routinely threatened, blackmailed, or even abused’ LGBTQI, were ‘perceived as abusers of the transgender community, and not as authorities capable of providing justice or protection’. ICJ submitted that when people do pursue cases, the police either fail to register complaints or carry out ineffective investigations; and in the minority of cases brought to court, perpetrators are often exonerated due to charge framing errors, investigation procedure irregularities, and prosecuting authorities’ ‘lax attitude’.[6]
[6] ‘UN Human Rights Committee, 142nd session, Geneva, 14 Oct - 7 Nov 2024. Submission of the International Commission of Jurists In Advance of the Examination of the Second Report of Pakistan under Article 40 of the International Covenant on Civil and Political Rights’, International Commission of Jurists, September 2024,
Citing various sources, the European Union Agency for Asylum (EUAA) reported:
Sexual minorities, transgender and other gender-diverse people face systemic discrimination, harassment and violence, at the hands of the state and society. There are societal taboos surrounding LGBTIQ issues in Pakistan, and persons belonging to these communities rarely reveal their sexual orientation or gender identity in the public sphere. As noted by a senior representative at local NGO Vision, same sex relationships from the government's perspective do not exist in Pakistan. The country is ‘by the virtue of its constitution an Islamic Republic, and therefore anything repugnant to the tenets of Islam is rejected legally and should be rejected by the society.’ The same source explained that there is a general lack of awareness on sexual orientation in Pakistan.[7] (footnotes omitted)
[7] EUAA, Country of Origin Information Report – Pakistan – Country Focus, December
The country information submitted by Mx Emerson included extracts from a UK Home Office report on ‘sexual orientation and gender identity and expression’ in Pakistan. These extracts have been reproduced below:
Pakistan is a conservative Muslim society in which anti-LGBTI attitudes persist and are widespread. LGBTI persons face societal discrimination and stigma as well as family and societal pressure to conform to cultural and religious norms, including marriage. Whilst men who have sex with men (MSM) is reported to be a common phenomenon, being openly gay (or lesbian) is not.
2.4.8 Various sources maintain that LGBTI persons are, in general, reluctant to be
open about their sexuality as they may face abuse, forced marriage, ‘honour
killings’, humiliation, societal discrimination and harassment, including in the
workplace, in the family and in accessing housing and healthcare. Some
persons from a higher socio-economic background in urban areas may
‘come out’ to their family or friends and have access to the ‘underground gay
scene’ at private parties or on social media, but if their sexuality is known,
they may be exposed to violence or blackmail.
2.4.9 There is a degree of societal acceptance of trans persons – primarily
khawaja siras – who do not conform to the traditional gender binaries. Trans
persons are increasingly represented in television and radio roles and in
coverage of trans issues in the media. However, many are marginalised or
ostracised by their families or wider society and there are numerous reports
of violence, intimidation and abuse, particularly against trans women.
2.4.10 Several organisations offer support and/or advocacy for LGBTI persons
throughout Pakistan, particularly in larger cities, although advocates for
LGBTI persons may be vulnerable to attack by non-state actors.
2.4.11 In general, a person living openly as LGBTI is likely to be at risk of treatment
from non-state actors which is sufficiently serious by its nature and
repetition, or by an accumulation of various measures, that it amounts to
[8] United Kingdom Home Office, Country Policy and Information Note Pakistan: Sexual orientation and gender
persecution or serious harm. Each case must be considered on its facts.[8]

I find that the applicant continues to identify as a gay man and give expression to his sexuality in Australia by entering into same-sex relationships and visiting gay venues since his arrival in February 2020.
On the basis of the evidence before me, I find that if the applicant were to return to Pakistan and continue to identify and express his sexuality as a gay man at the same level he has done so in the past, there is a real chance that he would face significant physical harassment, significant ill-treatment and significant discrimination. I find that such treatment amounts to serious harm under s 5J(4)(b) of the Act. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). I am satisfied that the real chance of persecution relates to all areas of Pakistan. I am satisfied that the essential and significant reason for his fear of persecution is his membership of the particular social group of homosexuals or LGBTQI+ persons in Pakistan. For the purpose of s 5LA of the Act, I find that effective protection measures are not available to the applicant in Pakistan. I also find that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Pakistan as such modification would require him to alter his sexual orientation or conceal his true sexual identity contrary to the requirements of s 5J(3) of the Act.
I find that the applicant has a well-founded fear of persecution in Pakistan. I also find that the applicant has no presently existing right, however expressed, to enter and reside in any other country under 36(3) of the Act.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing: 16 January 2025
Representative for the Applicant: Gretel Emerson
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.
…

2024,

identity and expression, April 2022,