I.N. v. Australia

The complainant is I.N., a national of Pakistan born in 1969. At the time of submission, his request for asylum in Australia had been rejected and he was facing deportation to Pakistan. The complainant claims that, if Australia were to proceed with his deportation, it would be in violation of its obligations under article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 28 January 1993. The complainant is represented by counsel.

On 24 March 2020, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant to Pakistan while his complaint was being considered by the Committee.

The complainant was born in a Muslim community and was a follower of Islam, but after being wounded during an incident of mob violence in 2002, he chose to become a Christian. He became engaged in evangelizing with his new church in the surrounding communities. He worked as a store supervisor for United Nations military observers from 1995 to 2010. From then, he worked for the Response International, UK, until 2012, after which he worked for his church, the Full of Grace Church. As part of his duties, he travelled to Australia, Türkiye and the United Kingdom of Great Britain and Northern Ireland. He did not consider applying for protection during any of those journeys.

Between 2007 and 2012, the complainant was the editor of the annual news update magazine of the Full of Grace Church. In the 2012 edition, he published an article that he wrote, with his photograph, in which he compared Christianity with Islam in such ways that it was interpreted to be arguing that Christianity was better. He also argued in the magazine that Muslim scholars would do well to follow what Christian leaders were doing.

In 2012, the complainant began going to poor areas in Peshawar, Nowshera and Quetta, as part of his new position as volunteer Director of Internal Affairs of the Human Rights Development and Welfare Organization.³ There he found poor families, which he judged had been obliged to convert from Christianity to Islam, and he therefore began attracting volunteers to help to re-evangelize those people through efforts in their original language. He also raised funds to help to implement this project. In 2013, after a bomb blast in the Pearl-Continental Hotel Rawalpindi, the complainant’s church organized some support for members of a sister organization who had lost family members in the blast. The complainant was engaged in organizing funds to assist and was involved in the relocation of some of the affected families in Rawalpindi, Lahore and Islamabad. He became well known for his efforts in this respect, in particular because of his fundraising activities.

3. Before the Australian migration authorities, the complainant declared that the Human Rights Development and Welfare Organization was a small, secular non-discriminatory organization that had been established by some friends, most of whom were Muslims. It helped women, children and refugees, including some Christians. It received funding from local people and the local government, and the leader had contact with some local officials. ↩

In November 2013, the complainant began receiving phone calls from mullahs accusing him of taking children and forcibly converting them to Christianity. On 29 November 2013, a team that the complainant was leading in Nowshera was attacked by a group of Muslim men. The complainant and his team were forced to flee.

On 18 January 2014, the complainant was physically assaulted while being arrested in his home. He was held for four days and tortured⁴ in order to provide the names of those who had converted to Christianity under his influence. After the complainant agreed to convert to Islam, he was taken home, being obliged to walk the streets to his house proclaiming his conversion to Islam. He was not charged with any crime. In the following days, he made plans to leave Pakistan.

4. No further details were provided. ↩

The complainant arrived in Australia on 29 January 2014, with a travel visa. He applied for a protection visa on 26 February 2014 and attended an interview with the Department of Immigration and Border Protection on 8 September 2014. Apparently, during the interview, the complainant mentioned an incident in 2002 that he did not mention in his written statement or application. He claimed that he had been caught up in mob violence, suffered injuries, namely, knife wounds from which he still bore the scars. However, he declared that the violence against him was not directed at him per se, but rather he had just happened to be in the wrong place at the wrong time. He mentioned that, during the violence, police were present but, given that the violence was being perpetrated by Muslims in the context of a matter concerning religion, they did not intervene. He considered that making a complaint to the police would be futile and that it was not a matter for which he could claim protection because it was not aimed at him personally.

The application was refused on 12 September 2014. The Delegate of the Minister for Immigration and Border Protection based his decision solely on one factor: that the complainant had been granted a new visa to Australia two days before he claimed to have been beaten and arrested by the police with an accusation of blasphemy and forcibly converting Muslims to Christianity. For that reason alone, and without considering any other matters relating to his claim, the application was rejected.

On 10 October 2014, the complainant applied to the Administrative Appeals Tribunal to review that decision. He appeared before the Tribunal on 9 December 2015 and 16 March 2016. He provided witness statements, including that of an eyewitness of his arrest and humiliation in the street in January 2014 and of his humiliation on his return to his house after the detention. A pastor testified that he had become aware of a fatwa issued against the complainant on 5 December 2013. Another statement was made by a Muslim who had heard the fatwa being made public at Friday prayers in Jamia Masjid in Lalkurti on that day. However, no copy of the fatwa was available when the Tribunal conducted its hearing.⁵ The complainant provided an extensive and detailed statement describing both the incident from 2002 and that of his arrest in January 2014. He explained that the visa that he had used to enter Australia in 2014 had been organized by the pastor and that he had only learned of the granting of the visa after his arrest and torture, because the visa had been processed through the Full of Grace Church. As supporting evidence, he provided emails and receipts of the multiple visa applications made in September 2013. The complainant also clarified that the Church had been the target of the threatening phone calls, not himself personally. He had taken the phone calls in his role as administrator of the Church.

5. The complainant provides a copy of the fatwa and translation of it, along with an accompanying witness statement and police report. The copy comes from one of his friends, who is a convert to Christianity who lives close to the complainant. His friend’s brother is a police inspector in Rawalpindi, and the latter provided a photograph of the documents that he found. ↩

On 7 September 2016, the Administrative Appeals Tribunal affirmed the decision made by the Delegate to refuse the application.

On 5 October 2016, the complainant filed an application in the Federal Circuit Court for the judicial review of the Administrative Appeals Tribunal decision, which was dismissed on 2 November 2017. On 23 November 2017, he appealed that judgment in the Federal Court of Australia, which was also dismissed, on 8 June 2018.

On 6 February 2020, the complainant requested the Minister for Immigration and Border Protection to intervene in his case, but, on 17 February 2020, the Department of Home Affairs determined that the complainant’s claims did not meet the guidelines for ministerial intervention.

The complainant submits that, if he is returned to Pakistan, he faces a real risk of being tortured and suffering cruel, inhuman, degrading treatment and punishment, in violation of article 3 of the Convention.

The complainant contests the findings of the Australian migration authorities. While he has not claimed that he was accused of blasphemy as such,⁶ he was accused of the crime of the forced conversion of children. He considers that the allegation of the Administrative Appeals Tribunal that being forced to convert was not a known punishment for blasphemy indicates a serious confusion surrounding the issues involved. He also claims that the evidence of the fatwa⁷ only became available at the time of the complainant’s request to the Minister for Immigration and Border Protection, but it was nevertheless not assessed.

6. The complainant refers to the dangers of anti-blasphemy laws in Pakistan. See Amnesty International, “‘As Good As Dead’ – The Impact of the Blasphemy Laws in Pakistan”, 21 December 2016, available at https://www.amnesty.org/en/documents/asa33/5136/2016/en/. ↩
7. The complainant outlines the nature of a fatwa. See Immigration and Refugee Board of Canada, “Pakistan: The issuance of fatawa; the manner in which they are publicized; their influence; whether they are outlawed; whether they are still being issued”, 20 November 2007, available at https://www.refworld.org/docid/4784def0a.html. ↩

The complainant asserts that he was traumatized and that his previous interactions with authorities has been less than conducive to trust, which may well have led to his delivering evidence in a less clear manner than was desirable. However, there was a fatwa issued against him, and its circumstances should be assessed before it is determined that he should be face deportation to Pakistan. In that connection, he refers to the case of Choudhary et al. v. Canada decided by the Human Rights Committee.⁸

8. Human Rights Committee, Choudhary et al. v. Canada (CCPR/C/109/D/1898/2009), paras. 9.6–9.8. ↩

On 24 November 2020, the State party challenged the admissibility of the complaint, arguing that some of the claims made by the complainant are inadmissible ratione materiae, because the risk that he may face persecution generally if returned to Pakistan does not meet the threshold of torture under article 1 of the Convention. It also submits that the complainant’s claims are manifestly unfounded within the meaning of rule 113 (b) of the Committee’s rules of procedure, because his claims have already been considered through comprehensive domestic administrative and judicial processes.

With respect to the complainant’s credibility, the State party notes that, during the domestic decision-making processes, the complainant was found to have concocted some aspects of his claims, for example, that he had been detained by police and forced to convert to Islam. While the State party does acknowledge that complete accuracy is seldom to be expected by victims of torture,⁹ this was a factor taken into consideration by domestic decision makers in forming views on the complainant’s claims.

9. Alan v. Switzerland (CAT/C/16/D/21/1995), para. 11.3. ↩

On the merits, the State party recalls in detail the decisions issued at the domestic level. The Delegate of the Minister for Immigration and Border Protection assessed the complainant’s claims submitted in both his protection visa application and in his subsequent interview, alongside country information from the Department of Foreign Affairs and Trade, non-governmental organizations and foreign government departments, as well as policy guidance and Australian statutory and case law. The Delegate found that the complainant’s claims were not credible and were concocted to support his application. The Delegate did not accept that the complainant had fled Pakistan in fear of his life, was due to a number of issues identified in the complainant’s account. For example, the complainant stated that he had been attacked and injured in 2002 and that he had experienced trouble when he started introducing Christianity to Muslims in 2006. However, despite that, the complainant did not seek protection during earlier overseas travel, which indicated to the Delegate that the claims were not credible.

The Delegate also considered the time frame of the incidents, as alleged by the complainant, his overseas travel and the date on which the complainant received confirmation of receipt of his visa to enter Australia. The Delegate noted that the complainant obtained his visa two days before the period during which he claimed to be in detention. He found that the complainant took advantage of the second visit to Australia to apply for protection. The Delegate therefore found that the complainant’s claims were not credible and that he had concocted his claims in order to obtain protection in Australia.

In the light of the country information emanating from the Department of Foreign Affairs and Trade of Australia and reports of the Home Office of the United Kingdom, the Immigration and Refugee Board of Canada and non-governmental organizations, the Delegate did not find that the complainant had a well-founded fear of persecution arising from the use of arbitrary blasphemy laws. The Delegate noted that in their reports, nongovernmental organizations noted that the laws were vaguely formulated and arbitrarily enforced by the police and the judiciary. The Delegate found that the complainant may have experienced negative attitudes towards his conversion to Christianity, but, because his claims generally were not credible, the Delegate was not satisfied that the complainant faced a real chance of being subject to serious harm should he be returned to Pakistan.

The Administrative Appeals Tribunal also found inconsistencies regarding the complainant’s claims, for example, that he had received phone calls from people who accused him of relocating and converting Muslim children to Christianity. That claim was made in the complainant’s first statement, but not repeated in later interviews or submissions. The Tribunal found that, had the complainant actually received calls of that nature, he would have explained that promptly and clearly when the matter was raised during the hearing.

The Tribunal also considered the complainant’s claim that he had been injured during an outbreak of sectarian violence in 2002. It expressed its concern that the complainant did not raise that incident in his first submission, in particular in the context of the general adverse credibility findings against him in relation to his other claims. Ultimately, the Tribunal gave him the benefit of the doubt and accepted that he had been a victim of an outbreak of sectarian violence in 2002.

The Tribunal rejected the complainant’s claims that he had been: detained by police, who he claimed were cooperating with the Taliban, in Rawalpindi; accused of converting Muslims to Christianity; tortured; and forced to agree to convert to Islam. The Tribunal outlined the three reasons for which it did not accept the complainant’s evidence in relation to that claim. The Tribunal did not accept that the police would cooperate with the Taliban in Rawalpindi. There was no evidence that the Taliban had that level of influence in the area or that the police would cooperate with them to the extent alleged. It found that there was no evidence that forced conversion was used to punish Christians found to be converting Muslims. Furthermore, as an educated person who held senior positions in the community, the complainant would have been well placed to seek assistance within Pakistan.

The Tribunal also considered the significant differences in the complainant’s account of his detention throughout his statements and interviews. In particular, it noted the inconsistencies in the complainant’s evidence regarding who was involved in his detention and alleged torture and his differing accounts of the harm that he had faced while in detention. The Tribunal further did not accept that the complainant had no choice but to flee Pakistan immediately following his release from his alleged detention. It considered that, even if the local police had been involved in the complainant’s detention, there was no indication that the complainant would be of continuing interest to the police or the authorities in Rawalpindi or elsewhere in Pakistan.

The Tribunal considered the risk of sectarian violence against members of the complainant’s church in generally. It found that there was no evidence that church members experienced problems as a result of their religious beliefs and, as such, held that that was a strong indication that the members of the church were not generally at risk of serious harm.

The Tribunal considered whether there existed a risk of harm to the complainant specifically. Having considered the various country reports, it found that the risk of sectarian or communal violence against Christians in Pakistan was generally low and was much less likely to occur in cities in Punjab, such as Rawalpindi. The Tribunal also considered the complainant’s claim that he was attacked and injured during an outbreak of sectarian violence in 2002, but it did not find that that indicated that he would face a real chance of experiencing harm from sectarian violence in the future. The Tribunal further considered the risk of the complainant being subject to arbitrary blasphemy charges, but it found that there was no evidence that suggested that the use of blasphemy charges against Christians was so frequent that the complainant would be faced with such a charge in the foreseeable future.

The State party notes that the evidence regarding the fatwa issued against the complainant in December 2014 was not available to the Administrative Appeals Tribunal at the time that it considered his application. However, the additional documents were provided by the complainant to the Department of Home Affairs with his application for ministerial intervention and were considered by the Department as part of its assessment of whether doing so would be in line with the guidelines under the Migration Act. The State party notes that the stamps on the alleged fatwa and on the police report indicate that they were translated from Urdu into English on 19 April 2018. However, the complainant has not provided a valid reason as to why he did not seek to submit the documents at the time of the hearing before the Federal Court of Australia on 24 April 2018.

The State party submits that the evidence of a fatwa issued against the complainant does not alter its conclusion that there are no substantial grounds for believing that he would be subjected to torture if returned to Pakistan. The complaint referencing a fatwa indicates that its author, having noted possible violations of the Penal Code of Pakistan, requested that the police register the complaint. However, there is no indication in the documents as to whether the police did, in fact, register the complaint. Furthermore, the complainant has not demonstrated that any consequence of the alleged fatwa would meet the threshold of torture. Given the uncertainty surrounding these documents, and the lack of evidence regarding the events that occurred after the completion of the police report, the State party submits that the additional evidence provided does not show that the complainant would be subject to torture as a necessary and foreseeable consequence of his removal from Australia. The State party concludes by noting that the information provided by the complainant elaborates on the issues arising from the use of blasphemy laws in Pakistan, but does not provide clarity as to how the complainant would face a personal risk, and the issues raised by the complainant relating to the human rights concerns arising from the use of blasphemy laws in Pakistan have nevertheless been specifically and carefully considered in the context of all domestic processes.

On 20 June 2023, the complainant submitted his comments on the State party’s observations, arguing that he had set out the full context of his claims in order for the Committee to judge whether that context provided evidence of the risk of torture. Considered individually, each element of that context might not in itself amount to torture, however they were provided to show that the threats against him, when considered together, served as justification of his fear that he faced a real risk of torture, and in fact of death.

The complainant explains that, while it is true that the fatwa was raised before the Administrative Appeals Tribunal, it was quickly dismissed as part of a group of claims. In response to that finding, he sought to overturn the negative credibility finding and was able to secure a copy of the fatwa, which he submitted at the first available opportunity, namely, his request that the Minister for Immigration and Border Protection intervene. The evidence was an attempt to respond to the Administrative Appeals Tribunal at the soonest possible moment, but it was not assessed by any process of the Government of Australia; it was ignored.

With regard to the State party’s argument that the complainant did not provide the original fatwa, he notes that it is difficult to imagine a process whereby the complainant could possibly gain possession of the original. It is an unrealistic requirement that puts the complainant in an impossible position. The complainant consistently claimed that a fatwa had been issued against him. In the face of doubt, he was able to produce a copy after some years. Responding to the State party’s statement that he did not produce the fatwa before the Federal Court of Australia, the complainant notes that neither the Federal Court of Australia nor the Federal Circuit Court had jurisdiction to assess new evidence regarding his credibility because they focused only on the substantive elements of the law, and not its application. For the complainant, the fatwa itself is justification of his fear that he would face a real risk of torture, rather than just cruel, inhuman or degrading treatment, should he be deported to Pakistan.

Before considering any complaint submitted in a communication, the Committee must decide whether the communication is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

In accordance with article 22 (5) (b) of the Convention, the Committee is not to consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that, in the present case, the State party has not challenged the admissibility of the complaint on these grounds. Accordingly, the Committee considers that it is not precluded by article 22 (5) (b) from examining the communication.

The Committee notes that the State party challenges the admissibility of the complainant’s claims under article 3 on the basis that they are manifestly unfounded, given that the complainant has not substantiated the existence of substantial grounds for believing that he would face a foreseeable, present, personal and real risk of torture if he were to be returned to Pakistan. The Committee considers, however, that the complainant has sufficiently substantiated his claims for the purposes of admissibility, on the basis of article 3 of the Convention, regarding his risk of being subjected to torture and ill-treatment if returned to Pakistan. Accordingly, it declares the communication admissible and proceeds with its consideration of the merits.

The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

In the present case, the issue before the Committee is whether the return of the complainant to Pakistan would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Pakistan. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the complainant would be personally at a foreseeable and real risk of being subjected to torture in the country to which he would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that the complainant would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances. Moreover, the Committee notes that, since Pakistan has not made the declaration provided for in article 22 (1) of the Convention, in the event of a violation of the complainant’s rights under the Convention in that country, he would be deprived of the legal option of recourse to the Committee for protection of any kind.¹⁰

10. Melie v. Switzerland (CAT/C/76/D/1049/2021), para. 7.3. ↩

The Committee recalls its general comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, according to which the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. Although the risk does not have to be shown to be highly probable, the burden of proof generally falls on the complainant, who must present an arguable case establishing that he or she faces a foreseeable, real and personal risk.¹¹ The Committee also recalls that, in accordance with its general comment No. 4 (2017), it gives considerable weight to findings of fact made by organs of the State party concerned, while, at the same time, it is not bound by such findings and instead has the power, under article 22 (4) of the Convention, to make a free assessment of the information available to it, taking into account all the circumstances relevant to each case.¹²

11. See, inter alia, A.R. v. Netherlands (CAT/C/31/D/203/2002), para. 7.3; and Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4. ↩
12. General comment No. 4 (2017) on the implementation of article 3 in the context of article 22, paras. 11, 39 and 50. ↩

In the present case, the Committee notes that the complainant maintains that he fears for his life, should he be returned to Pakistan, because he considers that the circumstances in which he was arrested and tortured in January 2014 are linked to accusations of the forced conversion of Muslim children to Christianity. To support his argument, he produces a copy of a fatwa dated 4 December 2014 and a police report dated 5 December 2014, which records a witness request that the police file a report for allegations of blasphemy regarding the complainant. The complainant does not clarify when exactly he obtained a copy of the two documents, therefore the Committee will take into account for that purpose the date of their translation, April 2018. The Committee observes that the existence of a fatwa allegedly accusing the complainant of blasphemy was raised before the Administrative Appeals Tribunal of Australia, but it was dismissed because the Tribunal considered that the complainant lacked credibility and fabricated his claims for the purpose of obtaining protection in Australia. In that sense, the Committee notes that there is no evidence that this alleged fatwa has ever triggered any official investigation concerning the complainant. Moreover, the complainant does not explain why he was able to get a copy of the fatwa only in April 2018, despite knowing of its existence since September 2015. He also does not explain why it was not possible for him to obtain the two documents in original, but only copies.

In this regard, the Committee nevertheless notes that, even if it were to accept the argument that the complainant was subjected to torture and ill-treatment in the past, the question that arises is whether he would be at risk of torture in Pakistan at the present time, if he were forcibly returned. The Committee also notes that, according to its practice, the onus is generally on the complainant to make an arguable case.¹³

13. See, for example, S.L. v. Sweden, communication No. 150/1999, para. 6.3; M.A.K. v. Germany (CAT/C/32/D/214/2002), para. 13.5; Zare v. Sweden (CAT/C/36/D/256/2004), para. 9.3; C.A.R.M. et al. v. Canada (CAT/C/38/D/298/2006), para. 8.10; and N.B.-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9. ↩

The Committee notes that the State party’s authorities acknowledged ongoing problems with sectarian violence and extremism in Pakistan. It nevertheless reiterates that the occurrence of human rights violations in a complainant’s country of origin is not, of itself, sufficient for it to conclude that a complainant would face a personal risk of being tortured there.¹⁴ The Committee notes that the complainant was given the opportunity to substantiate and clarify his claims before the domestic authorities. However, on the basis of the evidence provided, it has not been possible to confirm the complainant’s allegations or to determine the existence of a personal, foreseeable, real and present risk of being subjected to torture in the event of his return to his country of origin.¹⁵

14. See, for example, H.R.E.S. v. Switzerland (CAT/C/64/D/783/2016), para. 8.14. ↩
15. See, for example, M.K. v. Switzerland (CAT/C/60/D/662/2015), paras. 7.8 and 7.9; and D.R. v. Switzerland (CAT/C/63/D/673/2015), paras. 7.8 and 7.9. ↩

In the light of the considerations above, and on the basis of all the information submitted to it by the complainant and the State party, including on the general situation regarding human rights in Pakistan, the Committee considers that, in the present case, the information in the file does not allow it to conclude that the complainant’s return to Pakistan would expose him to a real, foreseeable, personal and present risk of being subjected to torture or that the authorities of the State party failed to conduct a proper investigation into his allegations.

The Committee, acting under article 22 (7) of the Convention, concludes that the deportation of the complainant to Pakistan would not constitute a violation by the State party of article 3 of the Convention.