1408755 (Refugee)

[2016] AATA 3428

1408755 (Refugee) [2016] AATA 3428 (29 February 2016)

DECISION RECORD

DIVISION  Migration & Refugee Division

CASE NUMBER:  1408755

COUNTRY OF REFERENCE: Pakistan

MEMBER:  James Jolliffe

DATE:       29 February 2016

PLACE OF DECISION: Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 29 February 2016 at 12:16pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Pakistan  applied for the visas [in] December 2013 and the delegate refused to grant the visas [in] April 2014. The first named applicant brought a protection Visa application and the second and third named applicants have sought protection on the basis of being members of the same family unit as the first named applicant and have not made separate claims for protection. The first named applicant will be referred to as “the applicant” in these reasons.

3. The applicants appeared before the Tribunal on 11 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. Only the first named applicant made protection claims and the other two named applicants claim protection on the basis of being members of the same family unit as the first named applicant. The Tribunal, in those circumstances, will refer to the first named applicant as the “applicant” in these reasons.

   Relevant Law

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

8. owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

CLAIMS AND EVIDENCE

11.The Tribunal has before it the Department and Tribunal files relating to the applicant together with information available to it from a variety of sources.

12.The issue in this case is the applicant claims to fear harm on the basis of her  Shia Muslim religious beliefs and her membership of a particular social group as a member of a family that includes a [professional] in Pakistan and fears harm on that basis if she returned to Pakistan.

13.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

14.In her protection Visa application which is dated [in] December 2013 the applicant claimed that she was born on [date] in Karachi in Pakistan. She claimed that she was of the Shia Muslim faith. She claimed that she married in [2003] in Karachi. She claimed that she held only Pakistani citizenship and that she had no right to enter or reside temporarily or permanently in any other country. She came to Australia on a [temporary] Visa and arrived in Australia [in] June 2013. Her [temporary] Visa was valid till December 2013. She claimed that she was issued with a Pakistani passport in [2012]. In her application she claimed that she had lived at various addresses in Karachi since 1982 up until leaving to come to Australia in June 2013. She claimed that she was educated in Pakistan for a total of [number] years and including at [a] University. She claimed that she worked as [two occupations] in Pakistan essentially between 1992 and 2002. She described herself as a housewife before she came to Australia. The Tribunal notes the documents provided to the Department include a document dated [in] June 2013 which indicates that the applicant was working with [a company] in Pakistan from January 2013.

15.She provided reasons in her application for why she came to Australia. She said that she and her family were insecure in Pakistan and that they felt threatened. She claims to have witnessed threats of kidnapping of children and that her children were very scared to leave the house or go to school and they are “mentally disturbed” as they face a lot of teasing and that causes them distress. She claimed that a “couple of months back, when our entire family was returning home, we were attacked by snatch bikers, who threatened us be pointing gun to give all our valuable items, this cause the whole family lot of trouble has we gave away all our belongings such as gold rings, currency, car keys and we were left with no money”. She claimed that there has been a lot of tension in her family because of safety concerns and that her children are disturbed and don’t want to return to Pakistan because they are fearful of threats and fearful of leaving their home and she claimed that her children had witnessed “quite a lot of unpleasant events” and she did not want to return them to that situation. The applicant claimed that her family belong to the Shia Muslim community and that as a result they are targeted in Pakistan. She claimed her husband is a [professional] who was required to travel for his work and that in her Shia residential community there has been a bomb blast which was intended to destroy the Shia community. She claimed that if she returned to Pakistan she may not be able to provide basic necessities to her children and that her young children “would not be in position to overcome the disturbing facts”. She claimed that there was a lot of corruption in the police and judicial system in Pakistan and that bribery was very common and that the authorities could not be trusted. She referred in her application to media materials and media information she had provided to the Department regarding Shia people protesting a leaders killing as well as articles about other instances of violence and killings in relation to Shia people.

16.The applicant also provided an undated and unsigned statement to the Department in which she referred to being scared if she returned to Pakistan and having threats made in Pakistan and that her children were frightened. She claimed there had been several instances where her family had been attacked and threats made to kidnap the children and that the family had been robbed and it was difficult to remain in Pakistan. She referred to belonging to the Shia community and that as a result the family had been targeted and faced a lot of problems. She referred to “recent evidence of attacks which has caused us really stress”. She referred to wanting to give her children a good education and for them not to live in fear. She referred to her husband working in Pakistan and fearing for his life while he travels to and from work. She claimed protection and referred to “evidence of Shia Muslims being killed and attacked on several instances. My family life will be under constant threat as long as we live in our home country”.

17.The applicant provided information in support of her protection Visa application about siblings living in Pakistan. She also provided copies of degrees from the University [in] the [faculty] that had been awarded to her as well as other documents in relation to her education in Pakistan. She also provided other documents in relation to her employment in Pakistan. She also provided copies of media material that has already been referred to elsewhere in these reasons. The applicant provided numerous media reports in relation to claimed sectarian violence in Pakistan and in particular in relation to the death of Shia Muslim people as a result of that violence. The applicant also provided a list of members of the Shia Muslim Community [in Australia] who are supporting the applicant in terms of her application. A statutory declaration was also provided from [a relative] of the applicant. That declaration is dated [in] May 2014. The declaration in summary refers to the deponent of the declaration having been in Pakistan [in] April 2013 for two weeks. He spoke about an event that occurred when he had been visiting the applicant and her husband. He said that he and the applicant’s husband had been walking to the applicant’s home and that gunshots were heard and he asked the applicant’s husband about the gunshots. He claimed that he was terrified and that only he and the applicant’s husband had been at the scene at the time and that they had narrowly missed the shots that were fired. He claimed that the applicant’s husband told him “there were few people who knew he was a [professional] and that he had received threatening phone calls many times”. He said he told the applicant’s husband that he should change accommodation and  that the applicant’s husband had said that they had only recently moved homes and was it not easy to relocate.

18.The applicant was interviewed by a Department delegate in relation to her protection Visa application. The delegate was not satisfied that the applicant was entitled to protection under the refugees Convention or under the complementary protection provisions of the Migration Act. A copy of the delegate’s record of decision was provided to the Tribunal with the application for review.

19.Written submissions dated 14 May 2014 were provided to the Refugee Review Tribunal on the applicant’s behalf together with the application for a review and supporting documents. In summary those submissions referred to the delegate’s decision to and referred to the applicant having visited Australia on a [temporary] Visa. The submissions refer to the applicants claim to be a Shia Muslim and that Shias were often targeted by the Taliban(in Pakistan). The submissions also referred to the claim that her husband is a [professional] and that as a result that increases the risk of harm to the applicant and her family in Pakistan. The submissions claimed that the applicant was stressed and nervous during her interview with the department delegate. The submissions referred to a claim that the applicant’s husband had escaped from a shooting in Pakistan while she was in Australia and that she was affected by that incident. The submissions in summary refer to a 1^st information report issued by Pakistani police in relation to that incident involving her husband. The submissions refer to the applicant’s delay in filing a protection Visa and the claimed reasons for the delay. The submissions also refer to an issue about whether the applicant’s husband is a practising [professional] which was an issue referred to by the Department delegate in the reasons for decision. The submissions claimed to have “attached the evidence of his qualifications” and then referred to various claims about the applicant’s husband’s [qualifications] but no documentation was provided in support of those claims. The submissions in summary also referred  to terrorist attacks on Shia Muslim targets in Karachi and referred to difficulties in relocating and referred to various media and other reports about sectarian violence in Pakistan. Some of those reports referred to the deaths of [professionals] as a result of sectarian or general violence in Pakistan.

20.Further written submissions dated 5 February 2016 were received from her representative on the applicant’s behalf. In summary in those submissions reference was made to the applicant’s claims for protection. The submissions refer to the applicant having converted to the Shia faith as a result of her marriage. The submissions refer to the applicant’s husband teaching at a [College] and that he had been the subject of attacks in Pakistan. The submissions in summary refer to the applicant’s claims and referred to an incident in February 2013 where it was claimed that the applicant and her family were attacked and robbed by three men on a motorbike. The submissions claim that the men accused them of being Shia Muslims and if they were Shia they would be killed and a gun was placed to the applicant’s husband’s head. The submissions claim that the applicant’s bag and jewellery were taken and her daughter was grabbed but because the daughter screamed other people came to the scene and the attackers disappeared. The submissions claimed that about 10 days later an anonymous note was left at the applicant’s home threatening them with punishment if they were found to be Shia.

21.The submissions claim that the applicant and her husband complained to the police about the incident and that the applicant’s made a report/complaint but that the police did not file an official report. The submissions claimed that in late April 2013 there was a shooting attack on the applicant’s husband and the applicant’s [relative] but they escaped injury.

22.The submissions claimed that these difficulties were caused by the applicant’s Shia faith and that she was invited to visit Australia by her sister and to live in a safer environment for a time. The submissions suggest that the applicant decided to seek a protection Visa after an incident involving her husband in October 2013. The submissions suggest that the applicant’s husband was on his motorbike when he was shot at by two men on another motorbike and that he escaped. The submissions refer to the applicant’s husband being unemployed at that time and relocating and that he was afraid to start his own [business] because he could be targeted. The submissions claim that the applicant and her children fear returning to Pakistan as there is a real chance that they would be attacked or abducted or sexually abused or assaulted or killed because of their religious beliefs. The submissions in summary claimed the family cannot relocate safely to any place in Pakistan and will not be able to seek police protection.

23.The submissions refer to the delegate’s record of decision and noted that the delegate had accepted that the applicant and her family are Shia and that her husband is a [professional] and that the family had a frightening experience at their home in early 2013. The submissions also refer to the delegate accepting that the applicant and her children were afraid to return to Pakistan. The submissions refer to other issues that the delegate had accepted about the applicant’s claims but also referred to claims that the delegate had rejected. The submissions in summary refer to the reasons why the applicant brought her protection Visa application and also referred to suggested reasons why the applicant was unable to give full details of an incident involving her husband in October 2013. The submissions claim that the applicant’s husband is willing to give telephone evidence from Pakistan about the incident to the Tribunal. The submissions suggest that the applicant was forthright and frank about her claims for seeking protection in Australia and that she feels a sense of freedom and safety in Australia. The submissions suggest that the Department delegate accepted (and gave the applicant the benefit of the doubt) that the applicant had genuine fears of returning to Pakistan. The submissions refer to “country situation reports” in relation to country background details about the applicant’s claims in terms of attacks on people of the Shia faith in Pakistan. The submissions suggest that the attack on the applicant and her family and the robbery were essentially convention based and also referred to the claimed further attacks on the applicant’s husband. The submissions in summary include extracts from various international reports and media reports in relation to background issues in terms of the applicant’s claims in terms of attacks on Shia Muslims and the incidence of violence directed at Shia Muslims and including the targeting of Shia professionals including [professionals]. In summary the submissions include an incomplete list of [professionals] who was said to have lost their lives to violence in Pakistan and also the submissions refer to extracts of reports in relation to state protection in Pakistan and in essence claimed that the reports indicate that there is a lack of state protection available to Shia Muslims who are targeted by extremist groups. The submissions in summary also claim that the applicant and her children could not safely relocate elsewhere in Pakistan to avoid the risk of harm.

TRIBUNAL HEARING

24.The applicants appeared before the Tribunal on 11 February 2016 to give evidence and present arguments. The applicants were represented by their registered migration agent during the hearing. The first named applicant gave evidence to the Tribunal. The other two applicants were present during the hearing but gave no evidence to the Tribunal.

25.The applicant confirmed her name and personal details and confirmed that she sought protection on the basis of her Shia religion and on the basis of her membership of a particular social group in that her husband is a [professional] in Pakistan and she and the other applicants fear harm on that basis if they were to return to Pakistan. She produced her Pakistani passport and the Tribunal was provided with three documents. One document was entitled “update on the plight of the Shia population of Pakistan-December 2015” and that was a document that had been compiled by [a] refugee support group in Australia. Another document appeared to have been downloaded from the Internet and was entitled “Time for Shias to leave Pakistan” and was dated February 2013. A third document was from the Terrorism Monitor publication and was headed “growing Islamic state influence in Pakistan fuels sectarian violence” and was dated June 26, 2015. The applicant confirmed her education and employment history in Pakistan.

26.The applicant told the Tribunal that her husband is currently working and lecturing [in] [subject] at a university in Pakistan. He was no longer living in Karachi. She said he had been in that position for about two years. She said he had done his [training] and then taken up academic work in [subject]. She indicated that she would provide further evidence/documentation regarding her husband’s [qualifications] and [work]. The Tribunal also asked about a list of [professionals] that were referred to in the submissions dated February 2016 (see page 17 of those submissions). The list was said to be of [professionals] who had lost their lives because of violence in Pakistan. The Tribunal asked about the time period in which the [professionals] were said to have lost their lives and the Tribunal was told that aspect would be clarified. She said she had converted to the Shia Muslim faith when she married her husband in 2003. She said she had signed the marriage certificate and that indicated that she had married a Shia man. She said she had no other documentation to support her claim that she was of the Shia faith. She also told the Tribunal that there was no documentation to show that her children were of the Shia faith. The marriage ceremony was a Shia ceremony.

27.She said that her children attend a Muslim school in Australia and she had taken the children to attend religious activities at places of worship (Imambarghahs) and particularly so during 2 ½ months of the year in terms of Shia religious festivals (Moharram) and attend processions. She produced a document from a Shia religious/[ organisation] in Pakistan that her husband belonged to and also referred to the letter/document in support of the applicant that had been signed by a number of Shia people in [Australia]. She said that she had not undertaken any form of religious training to convert to the Shia faith. Her family were Sunni Muslims. She was asked about practising her religion in Pakistan and she said that she had attended religious processions (Juloos) during Moharram and she had done so for about 10 years while she was in Pakistan. She said she attended daily at places of worship during Moharram and that was for about 2 ½ months each year during that period. She said that she offered daily prayers at her home. She said there had not been any difficulties when she had participated in religious parades in Pakistan and confirmed that these parades had security. She said that while there had been no difficulties she did have fears when she had participated in religious parades. She told the Tribunal that she had not been involved in any political activities in Pakistan. She said she had not had any actual difficulties before the events that occurred in February 2013 but that she was afraid before that.

28.The applicant told the Tribunal that after she married her husband and converted that she had been shut out by her family. She said that her siblings stay in touch with her "a little bit "that her other extended family had cut her off because she had converted to the Shia faith. She also claimed that Shia people were “not happy” with her because she had converted from the Sunni faith. She said people still spoke to her but they were “not happy”.

29.She was asked why she had delayed in seeking a protection Visa. She had arrived on a [temporary] Visa in Australia in June 2013 and sought protection in December 2013. She said it had not been her “plan” to stay in Australia but the incident in October 2013 involving her husband in Pakistan caused her to apply. She said her husband told her about that incident. The Tribunal noted that it took another two months after that incident for her to apply for protection. She said that she was still "in two minds" about seeking a protection Visa and was not sure about it in terms of either trying to stay in Australia or returning to Pakistan but that she applied because she was fearful for her children if they returned and that her husband said he thought she should apply. She told the Tribunal that she was afraid of “maybe” Sunni or Shia groups and maybe  Taliban groups and different groups associated with ISIS if she returned to Pakistan and that was because of her Shia religion. She said she had not been harmed by any Shia people in Pakistan in the past and was mostly afraid of harm from Sunni people if she returned to Pakistan. She referred to having been threatened by the three bikers in February 2013. She said that she was fearful that if she returned she could be killed or her  husband could be killed and her children kidnapped or her children physically abused.

30.She told the Tribunal in relation to the incident in February 2013 that she had been in the back seat of the vehicle and her son had been in the front seat with her husband and that a gun had been pointed at her head and at her husband’s head by the men on that occasion. She said one of the men had tried to take her daughter but her daughter screamed and other people had come to the scene and that had caused the men to leave on their bikes. She said the men had taken her husband’s wallet and mobile phone and his identification card had been in his wallet. The men had taken her finger rings and her bag. She said the men had asked her husband if they were Shias and had then in essence robbed them. She said that they had been attending a gathering at a relative’s home and had been returning to their home in the car and they thought that someone was following them on bikes. She said they stopped at some traffic lights and had seen two bikes with three people in total on the two bikes. She said the bikes got away in front of them and then the bikes stopped in front of the car outside their home. She said her husband was asked if he/they was Shia and he denied that he was and she said that one of the men had said that if they found out he was a Shia he/they would be killed. She said the men had been wearing helmets but she could see their faces and could understand what they were saying. She told the Tribunal that she had been wearing black as had her daughter at the time of the attack and that was because the attack had occurred at a time of religious significance for Shia people. She believed that being dressed like that would have identified the family as being connected to the Shia faith. She said that as a result of the robbery and the children being upset that her sister had suggested that she should come to Australia for a period of time.

31.She said after the incident that she and her husband had gone to the police station that same night but that the police described the incident as a “common incident” and no first information report was completed in relation to the incident. She claimed that after 10 days her husband received a piece of paper that contained a warning and the warning had said words to the effect “you lied and you will be punished”. She said that the piece of paper also contained an Arabic verse that related to death. She said the note was delivered to the family home. She said the receipt of the note was not reported to the police and she explained not reporting the note by saying that the police would not believe them and referred to the police not registering a first information report in relation to the earlier incident. She claimed that the note was thrown away.

32.She was asked about the next incident involving her husband in April 2013. She referred to her [relative] having been at her home for a family gathering and that he and her husband had gone out to get haircuts and that her husband had been shot at when they were returning to the family home. She said that she only became aware of this incident when her [relative] told her about it after she came to Australia. The Tribunal was referred to the statutory declaration by the applicant’s [relative] about this incident that has been referred to elsewhere in these reasons. She had not referred to this incident during the interview with the delegate because she only became aware of the incident after the delegates interview with her which had occurred in March 2014. The Tribunal noted that the statutory declaration from the [relative] to her husband receiving threatening phone calls “many times”. She said she only became aware that threatening phone calls had been received after she was in Australia. She said that the family had changed houses just before the February 2013 incident occurred. She said she did not believe that the incident in April 2013 involving her husband and her [relative] had been reported to the police.

33.She was asked about the October 2013 incident involving her husband. She referred to an incident [in] August 2013 where her husband thought he was being followed by bikers and had gone into a petrol station to avoid those bikers. She said that the next day her husband had gone into the office and that [in] September her mother-in-law had been injured and that her husband had then looked after his mother but she died. She said that her husband had then focused on dealing with his mother’s estate. She said that [in] October 2013 her husband had been travelling at night and was on a bike. She said the two bikers had fired shots at him and he had come off his bike. He then left the bike and ran away and reported the incident to the police the next day. She said that her husband had spoken to her about the incident three or four days after the incident had occurred

34.the Tribunal referred the applicant to the Department delegate's record of decision. The Tribunal referred to the delegate not accepting a number of the applicant's claims (see page 7of the decision) and was not satisfied that the first information report provided in relation to the claimed attack on the husband in October 2013 was genuine. The delegate had also referred to the delay by the applicant in seeking a protection Visa and was not satisfied that the attack on the family in February 2013 was as a result of sectarian hostility or that the applicant had a profile as a Shia that would make her a target for harm in Pakistan. The delegate had also not been satisfied that the applicant’s husband’s work as an academic [professional] gave him a raised profile that would put him at risk in Pakistan or that being a [professional] in Karachi presented a real chance of serious harm in terms of the applicant having a well-founded fear of harm if she returned to Pakistan. The delegate had also referred to state protection and country information in relation to that aspect (see pages 13 ,14 and 15,16  of the delegate's record of decision). The applicant said that she had told the delegate what had happened to her.

35.The Tribunal noted that there was very little specific detail in her protection Visa application about particular incidents or claims and the claims were fairly general in nature. The Tribunal asked the applicant about the claim in the protection Visa application regarding “threat of kidnapping children”. The applicant said that she had received a telephone call threatening to kidnap the children after the threatening note had been received after the February 2013 incident. The Tribunal noted that this claim had not appeared in the delegate’s record of decision in terms of the applicant having raised that issue on that occasion. The Tribunal also raised its concern  that the applicant was making a late claim about this issue and that raised concerns by the Tribunal about the credibility of the claim. No claim about receiving a threatening telephone call to kidnap the children had been raised in the written submissions of 5 February 2016. The Tribunal also asked about the claim in the protection Visa application that her children were teased. She said that she had not used that word. She also told the Tribunal that the children had not received any medical assistance in either Pakistan or Australia in relation to any emotional upset arising out of the February 2013 incident. She said the children had stopped attending school for one week after that incident but  had then resumed their education. She said that the bombing incident in January 2013 that had been referred to in her protection Visa application had occurred about [approximate distance] from her home in Karachi and the bombing had occurred in a Shia residential building.

36.The applicant told the Tribunal that she and her family could not relocate elsewhere in Pakistan because the risk is the same everywhere and she said that they would not be able to obtain effective state protection and referred to the police not registering the report about the February 2013 incident and she referred to the assassination of a high-profile figure (a former Pakistani President) who had not been protected.

37.She told the Tribunal that she and her family had not had any difficulties in Pakistan before the February 2013 incident apart from her husband having had his mobile telephone snatched on one occasion. She also told the Tribunal that to her knowledge her husband had not had any difficulties since October 2013 and that he was now in [city] working at the University. She told the Tribunal that none of her siblings had had any difficulties in Pakistan but that they were of the Sunni faith. She said that she and her husband had rented the home that they lived in Karachi before she came to Australia. She had nothing further to raise with the Tribunal in relation to her claims. The Tribunal noted that the applicant's husband had indicated he was willing to give evidence by telephone to the Tribunal in relation to the October 2013 incident. The Tribunal said that it had no way of maintaining confidentiality in relation to any telephone call that might be made to Pakistan and also had difficulty in that the Tribunal could not definitely identify the person to whom the Tribunal was speaking to (over the telephone) in Pakistan and in those circumstances the Tribunal did not propose to attempt to speak to the applicant's husband in Pakistan.

38.The Tribunal referred to information contained in the DFAT country report for Pakistani dated January 2016 and to information contained in the DFAT thematic report in relation to Shia people in Pakistan dated January 2016. In relation to the country report the Tribunal noted that corruption in Pakistan is widespread and that the Department assessment is that the low-level of development in Pakistan is a significant push factor for external migration. The Tribunal noted that Pakistan continues to face security threats from terrorist, militant and sectarian groups. The country report indicates that the counterterrorism military operation that commenced in June 2014 against terrorists and militant groups in FATA and Karachi has substantially reduce the level of generalised and sectarian violence throughout the country. Credible sources were reported to have claimed a 75% reduction in the number of sectarian and terrorist attacks throughout Pakistani between September 2014 and September 2015. The country report indicated that the security situation varies between Pakistan's provinces and autonomous regions. The level of violence includes a number of provinces and including Sindh province where Karachi is located. Urban centres tend to be more secure than rural areas. The country report noted that organised and violent crimes such as robbery and kidnappings for ransom occur throughout Pakistan. The paramilitary ranger operations in Karachi are said to have substantially reduced the level of serious crime throughout Pakistan.

39.The country report noted that with the exception of Pakistan's Ahmadi community most Pakistan are able to practice their religion freely although opportunities for religious freedom are generally greater in large urban centres than rural areas. The Department assessment is that there is generally a low level of official discrimination in Pakistan on the basis of religion but there is a moderate level of societal discrimination. The country report indicates that since September 2013 ranger paramilitary operations aimed at dismantling extensive militant and politico-criminal networks in Karachi have reduced the number of militant attacks and lessened the activities of criminal syndicates. According to official statistics there has been a 73% reduction in the number of targeted killings and an 85% reduction in the number of kidnapping for ransom incidents in Karachi in 2015. The report indicated that the Department does not yet have sufficient information to assess the sustainability of this downward trend in relation to crime statistics. The country report indicated in relation to state protection that Pakistan's laws and Constitution provide for state protection but the Department assessment is state protection is limited by resources and in some cases political will and personal means. The country report indicates that the Constitution guarantees the right to freedom of movement in Pakistan and that there is a high level of internal migration. The report notes that because of Pakistan's size and diversity there are viable relocation options for members of most ethnic and religious minorities and that many large urban centres are home to mixed ethnic and religious communities and offer a greater degree of anonymity as well is better employment prospects and access to services and state protection than smaller urban areas or rural areas. The Tribunal during the course of the hearing had discussed the first information report that had been provided in relation to the incident involving the applicant's husband in October 2013. The country report indicates that document fraud is endemic in Pakistan and that there is credible evidence of police in Pakistan accepting bribes to verify fraudulent first information reports. The report notes that the existence of a first information report does not therefore constitute evidence that the described events actually occurred.

40.The Tribunal referred to information contained in the DFAT thematic report of January 2016 in relation to Shia people in Pakistan. The Tribunal noted that the Shia population is spread throughout Pakistan and that Shia and Sunni communities are generally well integrated in a number of urban centres and including Karachi. The thematic report refers to the Pakistan constitution providing for freedom of religion and the report also notes that there are no legal barriers to interfaith marriage or religious conversion. The report notes that when interfaith marriages do occur one partner, usually the bride, generally undergoes religious conversion. The report notes that Shia mosques and places of worship are located throughout Pakistani and that Shias are  most prominent during Shia religious festivals and pilgrimages to Iran. The report notes that Shias are well represented through high-level professionals in Pakistan such as doctors and lawyers. Shias are well represented in parliament. The report refers to violence and refers again to the issues raised in the country report the credible sources have reported a 75% reduction in the number of terrorist attacks throughout Pakistani from September 2014 to September 2015. The report indicates that sectarian attacks have historically targeted individuals and places of worship and religious schools and that according to statistics 58% of the victims  from sectarian violence from January to June 2015 were Shia people. The Department assessment is that there is a low risk of sectarian violence for most Shia in Pakistan and a moderate threat of sectarian violence for prominent she is such as high profile professionals. The report indicates that Shia people continue to face a threat from anti-Shia and militant groups and that the group known as LeJ is the main perpetrator of anti-Shia violence in Pakistan. That group has claimed responsibility for a large number of attacks upon the Shia community and including in Karachi and that the Department has been told that group remains intact and has sleeper cells in major urban centres across Pakistan. The thematic report indicates that there were only three acts of communal sectarian violence in 2014 resulting in two deaths.  The report also indicates that there were six attacks on Shia mosques in 2015 which killed 111 people. This represents an increase in casualties but a decline in the overall number of attacks from 2014 and the most recent significant attack was on 30 January 2015 against a Shia place of worship in the Sindh province. The report notes that in relation to that province that Karachi is the largest city in Pakistan and Karachi has historically experienced high levels of generalised violence because of rival ethnic, political, business and criminal interests. The report notes that according to official figures there has been an 80% reduction in the number of targeted killings and a 93% reduction in the number of kidnappings in Karachi since the commencement of the paramilitary ranger operations in September 2013. The report indicates that the Department has been told by credible sources that the rangers have targeted and dismantled or badly damaged prominent sectarian and militant groups in Karachi and that includes the LeJ group. The report indicates that according to the South Asian terrorism portal there were 18 sectarian attacks against Shias in that province in 2015 and that resulted in 149 fatalities. The attacks included targeted killings of high profile Shias including doctors, lawyers, teachers and political and religious leaders. The report indicates that the Department assessment is that Pakistani authorities are broadly willing to protect Shia communities.  The report indicates as does the country report that there are options for members of most ethnic and religious minorities including Shia people to relocate to areas of relative safety within Pakistani and that the Department has observed that Shia people relocate with relative ease and frequency because of family and communal networks throughout Pakistan.

41.The applicant told the Tribunal that schools have been closed in Pakistan for a week recently because of terrorist activity and that a terrorist had been arrested in the [college] where her husband taught. She also referred to the terrorist attack on an army school in Pakistan. Her representative indicated that further submissions would be provided to the Tribunal in relation to country information.

42.The Tribunal raised concerns that it had with the applicant's claims. The Tribunal told the applicant that it was concerned that she had a well-founded fear of harm of persecution in Pakistan based on her evidence and her claims. The Tribunal noted that the applicant had delayed several months in applying for a protection Visa after she came to Australia and that was not consistent with her claims to fear harm if she returned to Pakistan. The Tribunal noted that the applicant had given an explanation in relation to the delay. The Tribunal noted that there were no real details in her protection Visa application about the incident involving harm ( in terms of the events of February 2013 or in relation to the claims that she had made to the Tribunal about receiving a threatening note after the incident or a threatening telephone call to kidnap her children). The claims in the protection Visa application were very general in nature and lacking in any specific detail about any particular incidents. The Tribunal noted that the very recent DFAT reports that had been referred to did not support many of the applicant's claims. The Tribunal raised its concern about the reliability of the police first information report regarding the claimed attack on her husband in October 2013 given the DFAT information that was referred to by the Tribunal. about the lack of reliability of police first information reports in Pakistan. The Tribunal noted that the applicant had only claimed difficulties in relation to the incident in February 2013 and had lived in Pakistan all her life and had not had any difficulties before then. The Tribunal during the hearing had raised concerns with the applicant about the late claim by her that she and her husband had received a telephone call threatening to kidnap the children after the February 2013 incident

43.The Tribunal allowed time for the applicant to provide further submissions and information to the Tribunal about her claims. The Tribunal received further submissions on the applicant’s behalf dated 25 February 2016. In summary those submissions referred to the applicant converting to the Shia faith as a result of her marriage to her husband. The Tribunal was provided with documentation in relation to the applicant and her children(the second and third named applicants) which indicated that she is of the Shia faith. The Tribunal was also provided with documentation in relation to the applicant’s husband’s [qualifications] as well as to the fact that her husband is also of the Shia faith. The submissions in summary also briefly discussed the delay by the first named applicant in seeking a protection Visa in Australia. In summary the submission indicates that the applicant decided to apply for protection in Australia after the claimed attack on her husband in October 2013 in Pakistan. The submissions also raise the late claim of the threatening phone call to the applicant’s home after the February 2013 incident. The submissions indicate that the applicant did receive threatening telephone calls and that stress has affected her memory and recollection. The submissions also in summary refer to the applicant being in a vulnerable position and refer to her husband’s occupation and being a target of violence because of his profession and that he is essentially keeping a low profile but if the applicant and her children returned to Pakistan they fear coming to the attention of radical groups and as a result facing danger and that the children would face additional danger by going to school. The submissions also suggest that the applicant and her daughter face greater threats because of their gender. The submissions suggest that country information indicates that the applicant’s fear of persecution is well-founded and that intermittent violence is very common in Pakistan and that a drop in violence in a short period does not indicate that the violence is going to drop continually. The submissions suggest violence against Shia and other minorities from the Taliban and other groups has intensified recently. The documentation forwarded provides a short hand written statement from one of the applicant’s children (the second named applicant) which in essence says that he does not wish to return to Pakistan and is fearful of returning. There were also additional extracts from the Internet and social media and media sources which in summary referred to attacks in Pakistan by militant groups in early 2016.

CONSIDERATION OF CLAIMS AND EVIDENCE

44.On the basis of the materials and information provided to the Department and to the Tribunal the Tribunal accepts that the applicants are Pakistani citizens and that their identities are as they claim them to be. The Tribunal accepts on the basis of the information and materials provided to the Department and to the Tribunal that the applicant's do not have a right to enter or reside temporarily or permanently in any other country apart from Pakistan. The Tribunal accepts that Pakistan is the applicants country of nationality for convention purposes and is the receiving country for complementary protection purposes.

45.The Tribunal is not satisfied as to the first named applicant's claims that she has a well-founded fear of persecution if she returned to Pakistan based on her claims and her evidence to the Tribunal.

46.The applicants claims to fear harm are referred to elsewhere in these reasons. The first named applicant claims to fear harm on the basis of her Shia religion and on the basis of her membership of a particular social group in that she and her children are members of the family of a Shia [professional] in Pakistan and are at risk of harm on that basis. The second and third named applicants seek protection on the basis of being members of the same family unit as the first named applicant and have not made any separate protection Visa application claims.

47.The Tribunal accepts that the applicants follow the Shia Muslim faith and identify as Shia Muslims. The first named applicant gave evidence about her religious practices in Pakistan and in Australia. The Tribunal is prepared to accept the applicant's claims that she converted to the Shia faith when she married her husband in Pakistan. The Tribunal is also prepared to accept that the first named applicant's husband is a [professional] in Pakistan.

48.The Tribunal after considering the applicant's evidence and her claims and submissions made on her behalf that have been referred to elsewhere in these reasons is also prepared to accept that the applicant and her family suffered an attack by three people in February 2013 outside their home in Pakistan. The Tribunal is prepared to accept that on that occasion she and her husband were threatened by men with guns and that they were robbed. The Tribunal is also prepared to accept the applicant's claims that there was some attempt on that occasion by one of the men to abduct her daughter. The Tribunal is prepared to accept the applicant's claims that she and her husband reported that incident to the police but that the police did not record their complaint on that occasion. The Tribunal is also prepared to accept that her husband was asked at the time of this incident if he was of the Shia faith and threatened on that occasion in relation to that faith. The Tribunal is also prepared to accept the applicant's claims that she kept her children at home for a week after that incident and that they then returned to school and that the children were afraid after the incident. The Tribunal does not accept, after considering the evidence, the applicant's claims that she and her husband received a threatening telephone call after the February 2013 incident in which a threat was made to kidnap her children. The Tribunal ,after considering the applicant's claims and her evidence about this incident and submissions made on her behalf, believes that it is reasonable for the Tribunal to assume that the applicant would have raised this claim, had it occurred as claimed by the applicant, at a much earlier time in her protection Visa application process. The Tribunal notes that the applicant only provided the Tribunal with information about this incident after the Tribunal asked her about her very general claims in her statement in her protection Visa application. As indicated the Tribunal raised concerns with the applicant about the very general nature of her claims in her statement in support of her application.

49.The Tribunal has also considered the applicant's claims that she and her husband received a threatening note after the February 2013 incident. The applicant's evidence about that note has been referred to elsewhere in these reasons. The applicant said that she and a husband did not report the note to the police at the time because she said that the police would not believe them and also referred to the police having not registered a first information report when she claimed they reported the actual February 2013 incident to the police. The Tribunal is prepared to give the applicant the benefit of the doubt and accept that she and her husband did receive a threatening note on that occasion.

50.The Tribunal has considered the evidence that her husband and her [relative] were subject to an attack in Karachi in April 2013. The Tribunal has referred to a statutory declaration by the applicant's [relative] in relation to this incident . The Tribunal after considering the evidence is prepared to accept that there was some incident in April 2013 where apparently shots were fired but no harm came to the applicant's husband or her [relative]. The incident was apparently not reported to the police in Karachi. There is no suggestion in the applicant's [relative’s] statutory declaration that there was any interaction on that occasion with the people who fired the shots.

51.The Tribunal has also considered the applicant's claims and the evidence in relation to the alleged incident in October 2013 where her husband was said to have been attacked by men on motorbikes when he was returning to his home. Shots were said to have been fired on that occasion. The Tribunal has seen the first information report that was obtained from the Pakistan police in relation to this incident and has referred to that document elsewhere in these reasons. The Tribunal, notwithstanding its concerns about the reliability of that document given the DFAT country information warning that has been referred to, is prepared to accept that the applicant's husband was involved in some incident on that occasion.

52.The Tribunal has considered the totality of the evidence about these incidents that have been referred to and the applicant's evidence about her claims to fear harm. All the incidents that were referred to by the applicant and that have been discussed elsewhere in these reasons occurred in 2013. The applicant said she had not had any difficulties in Pakistan before the February 2013 incident. She did not claim to the Tribunal that she had had any difficulties before that incident because of her Shia faith or because she was married to a [professional] and in those circumstances was a member of a particular social group as a family member of a [professional]. The evidence to the Tribunal included that she had engaged in attending Shia religious ceremonies for about 10 years after her conversion and before the February 2013 incident. She said that her husband had only had his mobile phone stolen before the February 2013 incident. She told the Tribunal that to the best of her knowledge her husband had not had any further difficulties in Pakistan after the claimed October 2013 incident. Her husband continues to work in Pakistan in a university/[College] and lectures in [subject].

53.The Tribunal has some concerns about aspects of the applicant's evidence and her claims. The Tribunal has referred to not accepting the applicant's claims that she and husband received threatening call or calls in relation to threats to kidnap her children after the February 2013 incident. The Tribunal also notes that the applicant and her husband apparently did not report the threatening note to the police after that note incident and the applicant also indicated that she did not believe that her husband had reported the claimed attack on him in April 2013 to the police. The Tribunal has also referred to concerns about the credibility of the police first information report that has been provided in relation to the claimed October 2013 report. The Tribunal is also concerned about the very general nature of the information provided by the applicant in her protection Visa application which did not provide any details about any particular incidents where she claimed harm. She claimed that she only became aware of the April 2013 incident involving her husband after she was told by her [relative] when she was in Australia. The Tribunal notes that the applicant kept her children away from school for one week after the February 2013 incident but then allowed them to return to school. The children received no particular medical treatment or counselling after the February 2013 incident. The Tribunal also notes the delay by the applicant in lodging her protection Visa application in Australia. That aspect has been referred to elsewhere in these reasons. The applicant’s evidence about the delay in lodging the protection application suggests to the Tribunal that was very much in “two minds” about applying and only did so because she was concerned about her children and was encouraged to apply by her husband.  The Tribunal also notes that the husband was apparently willing to lodge a report after the October 2013 incident but had apparently not complained to the police about the April 2013 incident and that appears to the Tribunal to be inconsistent and is also inconsistent with the failure to report to the police the claimed threatening note or claimed threatening telephone calls after the claimed February 2013 incident. Those inconsistencies and issues cause the Tribunal to have some concerns about the credibility of a number of the applicant’s claims. The Tribunal has considered these matters but is prepared, notwithstanding its concerns, to give the applicant the benefit of the doubt in relation to a number of her claims.

54.The Tribunal has referred to available and recent  and credible country information contained in the DFAT reports that have been referred to and discussed. The Tribunal notes that the Department assessment is that there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high profile professionals. The Thematic report also indicates that Shias continue to face a threat from anti-Shia and militant groups in Pakistan. However the Thematic report also indicates that the Department is aware of credible sources having reported a 75% reduction in the number of terrorist attacks throughout Pakistan from September 2014 to September 2015. The report also indicates that in relation to casualties arising out of sectarian violence from January to June 2015 that 58% of the casualties were Shia people but that the majority of those casualties were from large-scale attacks rather than targeted killings. The Thematic report, as indicated elsewhere in these reasons, refers to Karachi as having had historically high levels of generalised violence because of rival ethnic, political, business and criminal interests. However the report notes that there has been an 80% reduction in the number of targeted killings and a 93% reduction in the number of kidnappings in Karachi since the commencement of the ranger paramilitary operations in September 2013. The report indicates that the Ranger operations have targeted and dismantled or badly damaged prominent sectarian and militant groups in Karachi. The Department assessment is that there is a moderate level of generalised violence and a low level of sectarian violence in Karachi and that the number of fatalities from sectarian violence is relatively low in proportion to the city's large population. The applicant's husband currently lives in another city in Sindh province. The Thematic report also indicates that Shia people relocate with relative ease and frequency because of family and communal networks throughout Pakistan and that in many cases there are options for members of most ethnic and religious minorities, including Shias , to relocate to areas of relative safety within Pakistan.

55.The Tribunal has considered the totality of the applicant's evidence and her claims submissions made on her behalf and considered available and relevant country information contained in the DFAT reports. The Tribunal accepts those reports provide credible and recent information relevant to the applicant's claims.

56.The Tribunal's overall assessment of the evidence and country information is that the attack in February 2013 appears to have been a criminal act rather than motivated by any religious reason. The applicant said that she and her daughter were dressed in black and that may have indicated to the attackers on that occasion that they were of the Shia faith. The applicant did not claim any other particular incident of harm directly involving her before or after the February 2013 incident. She gave evidence about two other incidents involving her husband. The Tribunal’s assessment of those incidents is that they are also consistent with more general criminal activity and that Karachi, according to the country information that has been referred to, has historically had high levels of generalised violence for a number of reasons. The country information also indicates that the ranger paramilitary operations have very significantly reduced that overall level of violence.

57.The Tribunal's overall assessment is that the applicant and her family in 2013 were subject to some acts of generalised criminal violence. The only reference to the Shia faith in the incidents referred to by the applicant was the questioning of her husband in the February 2013 incident as to whether he was of the Shia faith. The only other issue was the threatening note that was received after this incident. The applicant said to the best of her knowledge her husband had not had any further difficulties after the October 2013 incident and that he continues in his occupation as a academic lecturer in relation to [subject].

58.The country information/submissions provided by the applicant includes references to the deaths of a number of [professionals] in Pakistan. As noted in the DFAT reports some anti-Shia militant groups have targeted high profile Shias and that includes members of some professions such as doctors, lawyers, teachers and political and religious leaders. Apart from the applicant's husband lecturing and being a [professional] there is no suggestion that he has been involved in any way in a leadership role in terms of political or religious activities.  He belongs to a Shia  international [professional] association. The Tribunal assessment of the evidence is that the applicant and her husband and her family were victims of a criminal attack with the motive of robbery in the February 2013 incident. The applicant said at the time the police essentially believed that the attack was part of a common pattern of violence and robbery and apparently declined to prepare a first information report on that basis. The  DFAT country information that has been referred to notes that the number of fatalities in Karachi from sectarian violence is relatively low in proportion to the city's large population. The DFAT reports do not indicate or suggest that [the husband’s profession] as a particular social group or their families are at risk of harm on that basis. The further attacks or incidents involving the applicant's husband  in 2013 are also in the Tribunal's view indicative of generalised violence in Karachi at the time as indicated by country information. There is no suggestion from the applicant's evidence that there was any reference to the Shia faith by the gunmen in those further two incidents in April and October 2013.

59.The Tribunal after considering the applicant’s claims both individually and cumulatively does not accept that the applicant has a well-founded fear of persecution if she returned to Pakistan based on her claims and her evidence to the Tribunal. The Tribunal does not accept on the basis of the evidence and materials and information before it that the applicant faces a real chance of serious harm if she returned to Pakistan either now or in the reasonably foreseeable future. The Tribunal does not accept that any risks the applicant may face in Pakistan, based on its assessment of her claims and her evidence and the country information referred to, would involve systematic and discriminatory conduct because of her Shia religion or her membership of a particular social group as a member of a family of a [professional] in Pakistan.

60.The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that she faces a real risk of significant harm. The Tribunal has considered the applicant’s claims and the evidence and available and relevant country information in relation to the applicant’s claims. The Tribunal has referred elsewhere in these reasons to its assessment of the applicant’s claims and the evidence and the available and relevant country information. The Tribunal believes that any real risks that the applicant and her family may face in Pakistan are real risks faced by the population of Pakistan generally and not faced by the applicant and her family personally.

61.The Tribunal after considering the totality of the evidence and the submissions and available and relevant country information that has been discussed elsewhere in these reasons does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that she will face significant harm . The DFAT country information that has been referred to indicates that organised and violent crime occurs throughout Pakistan but that since September 2013 the ranger paramilitary operations have reduced the number of militant attacks and lessened the activities of criminal syndicates. The country report indicates that there were 174 reported kidnapping cases in Karachi in 2013 but only 10 from January to July 2015 and there was an 85% reduction in the number of kidnappings for ransom in Karachi in 2015. Those statistics are relevant in relation to the applicant’s claims to the Tribunal that she was fearful about her children being kidnapped. The significant Pakistan military operations against terrorist and militant groups in FATA and Karachi since June 2014 are said to have substantially reduced the level of generalised and sectarian violence throughout the country (see paragraphs 2.28 and 2.31 DFAT country report for Pakistan January 2016). The Tribunal’s overall assessment based on the country information is that there is a low risk of sectarian violence for most Shia people in Pakistan and a moderate threat of sectarian violence for prominent Shia people. As indicated the Tribunal’s assessment based on the evidence and country information is that any real risks that the applicant and her family may face in Pakistan are real risks faced by the population generally and not faced by the applicant and her family personally. The Tribunal notes the applicant’s claims that her children were disturbed and upset by the robbery incident in February 2013. The applicant told the Tribunal that there had also been a threat to kidnap the children made in the subsequent telephone call to the family home. The applicant said that the children had remained away from school for a week after the February 2013 incident and had not received any medical or counselling treatment as a result of the incident. They had returned to school after the week break. The Tribunal has referred to a significant reduction in criminal and terrorist activities in Pakistan since September 2013 and that includes in relation to reports of kidnappings for ransom in Karachi and an overall reduction in criminal activities as a result of the ranger paramilitary activities. That country information has been referred to elsewhere in these reasons. The Tribunal has considered that information and the evidence and submissions and the Tribunal finds that after considering those issues that any risks that the applicant’s children may face in Pakistan in the future are real risks faced by the population generally and are not faced by the applicant’s children personally.

62.The Tribunal has referred to available country information. The Tribunal after considering the claims and submissions and the totality of the evidence and country information that has been referred to and discussed in these reasons is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Pakistan that there is a real risk that she will face significant harm.

Overall Summary

63.For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

64.The Tribunal affirms the decision not to grant the applicants Protection visas.

James Jolliffe
Member