1413547 (Refugee)

[2016] AATA 4163

1413547 (Refugee) [2016] AATA 4163 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413547

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:18 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 July 2016 at 10:35am

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 28 April 2016 and 3 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   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.

   Refugee criterion

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:

   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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant claims to be a citizen of Pakistan who was born on [date] in Karachi, in Sindh province, Pakistan. The applicant described his ethnicity as Pathan and his religion as Sunni. According to his protection visa application, he lived in [Suburb 1] in Karachi from 1985 to 2009, except for during 2002 to 2005 when he was living in [Suburb 2], in Peshawar.  He completed twelve years education and is fluent in Urdu and English and can speak and read Pashtu. The applicant described his occupation before coming to Australia as student. He was married on [date] 2009 in Islamabad. He departed Pakistan legally on [the next day]. His wife, father, mother, [and siblings] are residing in Pakistan.

21. The applicant presented his claims in his protection visa application [in] September 2013, a Departmental interview he attended [in] April 2014, in submissions from his adviser and a statutory declaration made by the applicant submitted to the Tribunal and at his Tribunal hearings on 28 April 2016 and 3 May 2016. 

22. The applicant claimed in his protection visa application that he left Pakistan for higher education. In response to the question Have you experienced harm in that country?, the applicant responded yes, and stated that he still has the mark on his chest. He claimed a few of his friends attacked him because he told them he was going to marry a Shia Sayyed girl and convert to a Shia. He claimed they used sugar cane to attack him.

23. The applicant claimed that he fears he will lose his life he returns to Pakistan. His father had received threats from the Taliban and his family will kill him because they are Sunni and not Sayyed. He has seen people who had been victims of this; “they” cut their head off and killed them. The applicant claimed that this will happen to him because his wife is Shia Sayyed and belongs to a strict family and he has “reverted” because of his wife. They are from different sects which is not allowed.

24. The applicant claimed that the authorities in Pakistan would not protect him if he returned there because the government is totally corrupt. He claimed government servants are not secure so he as a normal citizen he would not be secured. The applicant referred to the killing of a person whose father was a senior police officer and claimed that this person could not save his son’s life. While he claimed those responsible for the death of this officer’s son had been arrested, they were released after one week and had threatened the officer.

25. The primary issue in this review is whether there is a real chance that, if the applicant returns to Pakistan, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

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

27. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    ….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

28. In the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, the High Court also made comments on the correct approach to determining findings on credibility. Kirby J said at 39:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    With these points in mind the Tribunal now turns to an assessment of the applicant’s claims.

29. For the reasons discussed below, the Tribunal has some serious concerns about the credibility of most aspects of the applicant’s claims for protection.

    The applicant’s relationship and marriage to his wife

30. The applicant’s claims for protection rely primarily on his relationship and subsequent marriage to his wife who he claims is a Shia Muslim and a Sayyed. The Tribunal has a number of concerns about the evidence provided by the applicant and his wife in relation to the development of their relationship.

31. According to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant’s evidence was that he commenced chatting with his wife online in or around 2001 or 2002 while his wife was residing in [Country 1] and their relationship developed from there. Similarly, in his statutory declaration submitted to the Tribunal and in the hearing, the applicant stated that he met his wife in 2001-2002 on the internet and she was living in [Country 1] at the time. In the hearing he claimed that he and his wife disconnected from 2004 to 2005 and that she returned to Pakistan in 2005 or 2006 but they only resumed communication in 2006/2007 when he logged on to Yahoo messenger. The applicant’s evidence in the hearing was at that time they resumed contact, his wife was in [Country 1] and he gave her his phone number. Once she returned to Pakistan, after three months, she texted him on his mobile phone and they started contacting each other every day.  

32. However, the applicant also submitted a statement to the Department at his interview [in] April 2014 which he claimed provided full details of his claims and which the Tribunal finds is a significantly different account of how he met his wife and how their relationship developed. According to the statement, the applicant and his wife met through mutual friends whilst studying in Peshawar about seven years ago and after a few years they became inseparable and their friendship morphed into deep love. They were friends and lovers. He claimed whilst he moved back to Karachi after finishing school, he would travel to Islamabad just to meet her and their trysting continued for a long time. Then, in mid-2008 his wife’s family found out about him and sent her to [Country 1] but somehow they managed to get her parents to agree to their marriage. When the Tribunal put this to the applicant, the applicant claimed his wife wrote this statement because he was not good at writing English. The Tribunal notes that there is nothing in this statement to indicate that it was prepared by the applicant’s wife, as he claimed. The Tribunal also notes, as it put to the applicant in the hearing, that he has consistently claimed that he is fluent in English and he came to Australia to study which would suggest some proficiency in English, therefore the Tribunal does not accept the applicant had no awareness of what was in this statement. However, even if the Tribunal accepts the applicant’s wife wrote this statement on behalf of the applicant, the Tribunal has serious concerns that she would provide such a vastly different version of events surrounding their relationship and this raises serious doubts about the credibility of these claims.  While the applicant claimed that if he knew the statement was different he would not have been so stupid to provide it the Department, the Tribunal does not find that this alleviates its concerns regarding the truthfulness of the applicant’s claims regarding his relationship with his wife.

33. The Tribunal has also taken into consideration the applicant’s wife’s evidence that she was suffering depression and on medication at the time she prepared this statement and that she did not think it through. Given the Tribunal’s general concerns about the credibility of the applicant’s claims, and the fact that nothing has been submitted to substantiate the applicant and his wife’s claims either in relation to the applicant’s wife’s suicide attempts or her mental health, on the evidence available the Tribunal does not accept that the applicant’s wife is or was suffering from depression or anxiety issues and that this resulted in her “mixing up”, as she claimed, the details on how she and the applicant met and how their relationship developed.

34. Further, the Tribunal finds a number of other discrepancies in the applicant’s evidence raises further doubts about the credibility of the applicant’s claims regarding his relationship with his wife. The Tribunal notes according to the applicant’s evidence in the hearing, when he first communicated with his wife in 2001 or 2002 via the MIRC channel, his wife was in [Country 1]. His evidence was that they would talk about what they did that day and where she went. In contrast, the applicant’s wife’s evidence was that when she first started chatting to the applicant in 2001, she was in Islamabad and she similarly stated that they would chat about what they were doing and what they were studying. While the Tribunal appreciates that this allegedly occurred some fourteen to fifteen years ago, and that the applicant and his wife were considerably young at the time, the Tribunal has difficulty accepting that they would not accurately and consistently recall where the applicant’s wife was living at the time they established contact and their friendship and discussed such matters as their daily events.

35. The Tribunal notes in the statutory declaration submitted by the applicant to the Tribunal he claimed, in terms of why he changed his religion, that he had talked to his wife for four to five years on the phone. Yet, his evidence in the hearing does not suggest that he and his wife communicated for that length of time, particularly by phone. Instead, the applicant’s evidence was that he communicated with his wife via the internet on a chatting site, and not all the time, from 2002 until he disconnected from her for a number of years before resuming contact with her again in 2006 or 2007 once, prior to having contact with her by phone once she returned to Pakistan in 2007.

36. The applicant claimed in the hearing that he and his wife attended the same wedding and saw each other there. He stated that he was friends with the groom and suggested that his wife was maybe the bride’s friend. The Tribunal notes that there was nothing in the applicant’s previous evidence about him and his wife attending the same wedding. In the applicant’s statutory declaration submitted to Tribunal he claimed that he would go to Islamabad and see his wife from a distance from time to time, this happened on about two or three occasions when she would go to the shopping centre with friends and he was nearby and another time was when he went to an uncle’s wedding in Islamabad and he saw her. While the applicant claimed that he had mentioned in the statutory declaration that he met his wife three times and did not go into details, the Tribunal does not accept that if the applicant had in fact attended the same event and according to the applicant’s wife’s evidence, spoken to each other on this occasion, that the applicant would have failed to include this particular information in his statutory declaration but discuss all the other times that he had seen his wife but had not had direct contact with her.

1. The applicant’s evidence was that he and his wife discussed marriage in 2007, seven or eight months after they resumed contact after several years of no communication. When asked if at this time, they had any idea about when they were going to marry, the applicant claimed he told his wife that he had applied for a student visa and once everything went through they would then get married. However, the Tribunal notes when asked when he applied for the student visa, the applicant stated that it was in 2008, which was after the alleged discussion he had with his wife about marriage in 2007, when he purportedly told her their marriage would have to wait until his student visa application had been finalised.

2. The Tribunal has also had regard to the applicant’s evidence in the hearing regarding the alleged suicide attempts made by his wife. The Tribunal notes in the hearing the applicant claimed that his wife took pills on all three occasions and nothing else. However, in his statutory declaration submitted to the Tribunal, the applicant claimed in addition to taking pills, his wife cut her arm at the beginning of April 2009. As the Tribunal put to the applicant, it would expect that he would remember that his wife allegedly tried to kill herself by cutting herself, in addition to taking pills, given the seriousness of her actions. While the applicant claimed that maybe he did not understand the question, the Tribunal notes that it specifically asked the applicant if his wife just took sleeping pills when she tried to kill herself. The Tribunal finds the question clear and unambiguous, particularly in light of the applicant’s earlier evidence that his wife had also allegedly cut herself, and therefore does not accept the applicant’s suggestion that he did not understand the Tribunal’s questions.

3. The Tribunal also finds the applicant’s evidence as to the timing of his wife’s alleged third attempt at suicide to be inconsistent with his evidence in his statutory declaration submitted to the Tribunal. In the hearing the applicant claimed that his wife’s third attempt to kill herself was two months after she returned from [Country 1] in November 2008, which accordingly makes that January 2009. However, according to the applicant’s statutory declaration, he claimed that his wife’s third attempt on her life was in April 2009. The Tribunal notes that it also questioned the applicant as to why, if his wife’s parents agreed to them marrying after this third suicide attempt in January 2009, and according to his statutory declaration he had also been granted his student visa in January 2009, he and his wife did not marry until April 2009, the day before he left the country. The applicant responded that it took two to three months for them to organise the marriage. Yet, according to his statutory declaration submitted to the Tribunal, the applicant claimed that his wife was hospitalised in April after she cut her arm and it was only a few days after this incident that her parents agreed to the marriage and they were married on 9 April 2009, after his wife had been discharged from hospital.  The Tribunal finds it implausible that if the applicant and his wife were only married the day before the applicant left Pakistan to come to Australia because his wife had been in hospital after an attempt on her life, that he would not recall this, even given the passage of time since these events.

4. Further, the Tribunal notes the applicant’s wife’s evidence when asked why, if she attempted to kill herself at the beginning of 2009 and this led to her parents changing their mind, that she and the applicant waited until April 2009 to marry, that she had family coming from [Country 1] and did not want to do the ceremony before them. The Tribunal finds this somewhat different to the applicant’s evidence that it took several months to plan the wedding or alternatively, that his wife was recovering from her alleged third suicide attempt in April 2009.

5. The Tribunal has taken into consideration the applicant’s evidence in the hearing regarding who attended the marriage ceremony and reception on 9 April 2009. He claimed that two of his friends, his wife’s parents, two of his wife’s friends and some other family friends of his wife’s parents were present. The Tribunal finds this consistent with the photographs of the applicant’s marriage which were submitted to the Tribunal in which the applicant confirmed the presence of  several of his [relative’s] friends. The Tribunal notes when it put to the applicant that the photographs suggested that his wife’s parents did not keep their marriage a big secret and did not want anyone to know about it, as his wife suggested in her evidence, the applicant suggested that some of the men present may have been the driver or the brother of his wife’s friends who may have dropped them off and stayed for a photograph or a meal. The Tribunal finds the applicant’s subsequent evidence implausible and inconsistent with his earlier identification of the people shown in the photographs he submitted. The Tribunal does not accept that if the applicant’s wife’s parents did not want anyone to know about the applicant and his wife’s marriage for whatever reason, they would have had people outside of the applicant wife’s immediate family present at the wedding and reception. While the Tribunal accepts that the applicant and his wife’s marriage may not have been the extravagant or ostentatious celebration which lasts a week, it does not accept the adviser’s submission at the conclusion of the hearing that the applicant’s wedding was a discreet celebration because her parents did not want her extended family to know about the marriage. Rather, given the timing of the marriage a day before the applicant left Pakistan to come to Australia, it appears that arrangements for the marriage were made hastily and there was insufficient time to organise a more elaborate ceremony or celebration.

6. The Tribunal also found the applicant’s evidence regarding when his family learnt of his marriage and conversion to be vague and contradictory. The applicant initially claimed that in January 2011 his father told him he was an embarrassment for the entire family and from that day on they did not belong to each other. He subsequently claimed in 2011 his father was sceptical but not 100 per cent sure and it was in 2012 that his family came to know the whole story however he did not know how. However, in the applicant’s statutory declaration, he claimed that his family found out about his relationship with his wife in 2011. The applicant claimed in his statutory declaration that until 2011 he did not need to work as his father was funding his studies but when he found out about his conversion and marriage he disowned him and cut him off from all support. The Tribunal also notes, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant claimed that his family learnt about his marriage and conversion in 2013 when a formal letter was sent to his familial home which identified his wife.

7. The Tribunal has taken into consideration the letter of separation from the applicant’s father, which was submitted by the applicant as evidence of his family’s knowledge of his marriage and alleged conversion. According to the applicant’s statutory declaration submitted to the Tribunal, and the submission from his adviser, the applicant’s father obtained this declaration of separation because his father was receiving threats from the villagers and the Taliban and therefore had to show that he had no relations with him. For the reasons discussed below, the Tribunal does not accept that the applicant’s father received any threats from the Taliban. Further, the Tribunal notes that the applicant made no mention in the hearing about his father receiving any threats from the villagers. The Tribunal does not accept that if one of the main motivations for the father obtaining this document was to appease the villagers in his area who were threatening him, that the applicant would fail to mention this. The Tribunal also notes that this declaration made on 26 June 2012 does not refer at all to the applicant’s marriage or conversion but simply states that due to his “dis-obediency and mis-behaviour” the applicant’s father has no more relationship with him. In light of the Tribunal’s concerns regarding the applicant’s credibility, it places little weight on this document.

8. Based on the above, the Tribunal has serious doubts about the credibility of the applicant’s claims regarding how he met his wife, how their relationship progressed and whether either his or his wife’s family had any objection to their marriage. For the reasons discussed above, the Tribunal does not accept that the applicant and his wife met over the internet in 2001, when the applicant’s wife was eleven or twelve years old and the applicant sixteen or seventeen years old, that they chatted to each other for a period of time and then stopped communicating for several years before reconnecting. The Tribunal does not accept that the applicant’s wife attempted suicide on three occasions in an effort to convince her family to agree to her marrying the applicant and after the last occasion her parents capitulated to the marriage. While the Tribunal notes the applicant has provided a copy of his marriage certificate confirming his marriage to his wife, given the Tribunal’s concerns regarding the credibility of the applicant, and his wife, generally, the Tribunal does not accept on the evidence before it that their union was a love marriage which was not accepted by both their families.

   Conversion

9. The applicant claimed that he converted from being Sunni to Shia in order to marry his wife. As put to the applicant during the hearing, the Tribunal has serious doubts about the applicant’s claims regarding his religious beliefs. The Tribunal found the applicant demonstrated a better knowledge of the Shia faith, which he claimed he first started reading about in 2007, than his alleged Sunni faith. While the applicant claimed that the reason he did not know more about the Sunni faith is because back then he was a small kid and when he was a mature person he was thinking of converting, the Tribunal does not accept that if the applicant belonged to what he described in the hearing as a strict fundamentalist Sunni family and had practised this religion up until his early 20’s, that he would not have a better understanding of fairly central aspects of his alleged faith such as the observance of Muharram by Sunnis.

10. The Tribunal has also taken into consideration the letter from the Imambargah in Karachi which the applicant attended confirming that the applicant belongs to Fiqah Jafarya/Shia-Asna-Ashri. The Tribunal notes that there is nothing in this letter suggesting that the applicant was a convert to the Shia faith or that he was in danger as a result of his alleged conversion. Instead, the letter simply states that as Shia the applicant’s life was in danger and he was in need of protection.

11. Given the Tribunal’s concern about the applicant’s general credibility and the credibility of his claims regarding the circumstances of his marriage and the limited evidence before it suggesting that the applicant has changed his religion from Sunni to Shia, the Tribunal does not accept that the applicant has converted. Instead, the Tribunal finds that the applicant has always been a Shia and that he has continued to practise his Shia faith since arriving in Australia. It therefore follows, the Tribunal does not accept that the applicant faces a real chance of harm as a Shia Muslim convert or as a member of a particular social group of apostates of the Sunni religion. It does not accept that the applicant faces a real chance of harm from members of his tribe who will see him as having shamed them by converting from the Sunni religion.

    The attack on the applicant in 2007

12. The applicant claimed in the hearing that he was attacked by his friends in 2007 when he told them he was thinking of marrying a Shia girl and converting to the Shia faith, in a joking way. The Tribunal does not accept the applicant’s claims regarding this incident are credible, particularly in light of its finding above regarding the applicant’s alleged conversion. The Tribunal also finds it implausible generally that if the applicant were a Sunni, he would tell five Sunni friends from [Region 1] about his plans to convert to the Shia faith and marry a Shia girl when his evidence was that he had kept his friendship and later relationship with her a secret. While the applicant claimed that he did not tell his friends in a serious note and said it like a joke to see what their reaction was, the Tribunal finds it somewhat implausible that he would discuss what are relatively serious and controversial issues in Pakistan so casually amongst a group of Sunnis.

13. When asked how he broached the issue of conversion to the Shia faith and marriage to a Shia girl amongst his Sunni friends in a non-serious way, the applicant provided no explanation and simply stated that this was his first experience. The Tribunal does not accept that the applicant did not realise the consequences of his actions or that he was not old enough to realise or because he was not practising the Sunni faith like others, he was totally unaware of this, as he asserted during the hearing. The Tribunal finds it far-fetched that the applicant would not be cognisant of the division between the two sects of Islam, particularly given his family originate from [Region 1], where there has been considerable sectarian violence. In fact, the Tribunal finds the applicant’s evidence regarding the non-disclosure of his relationship with his wife to his family is evidence of his knowledge or awareness that this is not necessarily accepted.

14. As such, the Tribunal does not accept that the applicant told five of his Sunni friends of his intention to convert to the Shia faith and to marry a Shia girl and that they responded by beating him with sugar cane and threatening him.

    Threats made by the Taliban to the applicant’s father

15. The applicant claimed that as a result of his conversion to the Shia faith and marriage to a Shia girl, the Taliban made threats against him and his father. Again, the Tribunal refers to its earlier findings regarding the applicant’s alleged conversion and finds that this raises doubts about the credibility of this claim. Further, according to the applicant’s evidence in the hearing, the Taliban came to his home in Karachi in 2012 and told his father he had to be punished to the death and asked about his whereabouts. The Tribunal notes the applicant was unable to tell the Tribunal during the hearing how many Taliban went to his home looking for him (despite previously claiming in his statutory declaration submitted to the Tribunal that it was two Taliban), when in 2012 they went looking for him other than it was in the beginning of the year in March, April or May or more importantly, how the Taliban would have learnt of his marriage and conversion. While the applicant suggested it may have been one of the five friends he allegedly jokingly told in 2007, some four to five years earlier, given the Tribunal does not accept the applicant had advised his friends of his intentions to marry and convert, it does not accept this supposition. The Tribunal also finds it implausible that the Taliban would have learnt of the applicant’s marriage and conversion given his evidence in the hearing was that no-one else really knew about these things apart from his family in early 2012.

16. The Tribunal therefore does not accept that the Taliban went to the applicant’s home in Karachi in 2012 looking for the applicant or making threats against the applicant and his father because of his marriage and alleged conversion.

    Death of the applicant’s [relative] and the Taliban’s claim of responsibility for his killing

17. The applicant claimed that his [relative] was assassinated by the Taliban because of him and that his cousins blamed him for his [relative], their father’s, death. In the hearing, the applicant claimed that his [relative] was in Hayatabad, in Peshawar with another friend looking for a house to rent so he could relocate his family, and he was shot on the spot and a week later a letter was left at his home for his father, in which the Taliban claimed responsibility for the applicant’s [relative]’s death. When asked about the circumstances of his [relative]’s death, the applicant claimed when his [relative] went to the see the house, the guy was already there waiting for him and when he entered he shot him.

18. The applicant provided a copy of the First Information Report (FIR) which was allegedly lodged in relation to this incident. The Tribunal has taken into consideration the country information it put to the applicant in the hearing regarding the prevalence of document fraud in Pakistan and the ease in which official documents, including FIR’s, can be obtained. Given the Tribunal’s concerns about the applicant’s general credibility, as discussed in this decision, the Tribunal places little weight on this document as evidence of his [relative]’s death.

19. However, even if the Tribunal accepts that the FIR is genuine and that [Person A] whom the applicant claims is his [relative] is the applicant’s relative (which the Tribunal notes it has no evidence to confirm the familial relationship), the Tribunal finds that there is nothing in the FIR to suggest that the applicant’s [relative] was the specific target of this attack, particularly given that there were three other people with the applicant’s [relative] at the time the incident occurred, that the Taliban were or were suspected of being responsible for the attack or that this incident had anything to do with the applicant. The Tribunal notes according to the delegate’s decision, a copy of which was provided to the Tribunal, there was a report of the death of a [Person A] in [The news] dated [2013], in which it was stated that he was killed by unknown killers. The article also refers to the rise of killing of [professionals] in Khyber Pakhtunkhwa  and the regular threats of murder and extortion received by [professionals] from criminals and extortionists.

20. The applicant claimed in the hearing that ten days after his [relative]’s death, his father received a letter from the Taliban in which they claimed responsibility for killing his [relative]. The applicant submitted a copy of this letter, with translation, to the Tribunal. The Tribunal notes that there was some discussion during the hearing about the applicant’s apparent failure to raise the existence of this letter until after the delegate had made their decision. As the Tribunal put to the applicant, there was nothing in the delegate’s decision, a copy of which was provided to the Tribunal, about his father receiving a letter ten days after his [relative]’s death. While the applicant claimed he did provide the letter to the Department at his interview, the Tribunal notes that the purported letter from the Taliban is not on the Department’s file. The applicant insisted that he had submitted the letter to the Department. The Tribunal reviewed the record of the interview with the delegate and notes that the applicant submitted a number of documents at the early stages of the interview and advised that he had two further documents to submit which were to arrive in a weeks’ time, one of which was a letter from the Taliban that they had killed his [relative]. The Tribunal finds on the basis of this evidence that the applicant did not submit this letter to the Department at his interview, as he claimed in the hearing, Further, it appears he did not submit the letter to the Department after the interview as it is not on the Departmental file. However, on reviewing the record of the interview, the Tribunal does accept that the applicant did raise during the interview that his father had received a letter a few days after his [relative]’s death claiming responsibility.

1. The Tribunal has considered the applicant’s claim regarding this alleged letter from the Taliban claiming responsibility for his [relative]’s death, including a copy of the letter which he submitted to the Tribunal. Firstly, in regard to the letter submitted, the Tribunal places little weight on this document, given that it could have essentially been written by anyone. Secondly, as discussed above, the Tribunal does not accept on the evidence before it the applicant’s [relative] was killed by the Taliban. Thirdly, the Tribunal finds it implausible that if the Taliban were angry with the applicant about his conversion and marriage to a Shia and had previously threatened his father with death in 2012, that the Taliban would not have done something to his father and would have instead waited until November 2013 to kill his  [relative]. While the applicant claimed that his [relative] is the eldest in the family and therefore is the most senior person since his grandfather passed away, the Tribunal finds it far-fetched that if the Taliban were aggrieved by the applicant’s actions, that they would wait over a year and a half after they allegedly first threatened his father, to act against the applicant’s family and that they would target his [relative] and not a member of his immediate family. The Tribunal therefore does not accept that the applicant’s claims regarding the Taliban claiming responsibility for his [relative]’s death are credible. It therefore follows that the Tribunal does not accept that the applicant’s cousins blame the applicant for his father’s death and would want to harm the applicant on his return to Pakistan for this reason,

2. Based on the above, the Tribunal also does not accept that the applicant has been of any interest to the Taliban because of his marriage and alleged conversion. The Tribunal does not accept that the Taliban in [Region 1] threatened the applicant’s father and then killed his [relative] to send a message to his family, as he claimed in his statutory declaration submitted to the Tribunal. The Tribunal does not accept on the evidence before it that the Taliban have any knowledge or awareness of the applicant’s marital status and taking into consideration his profile as an ordinary citizen of Pakistan, and also the Tribunal’s findings above regarding the applicant’s religion, the Tribunal finds it implausible that the Taliban would have any interest in the applicant or these issues, now or in the reasonably foreseeable future, if he returned to Pakistan.

3. Considering all the evidence before it, the Tribunal does not accept that if [Person A] is the applicant’s [relative] and he was killed in [2013] as the applicant claimed, that he was targeted and killed by the Taliban because of the applicant’s actions. It therefore follows that Tribunal does not accept that the applicant’s cousins will seriously harm or kill the applicant on his return to Pakistan because they see him as being responsible for the death of their father at the hands of the Taliban or because his alleged conversion led to the death of their father.

   Fear of harm from the applicant’s wife’s extended family

4. The applicant claimed in the hearing that in addition to fearing the Taliban and his family, particularly his cousins, he fears his wife’s [relative]s and extended family will want to harm him because he is not a Sayyed or Shia.

5. The Tribunal has taken into consideration the fact the applicant only raised this particular fear of harm from his wife’s extended family during the hearing. The Tribunal finds it implausible given the seriousness of the applicant’s claim, which was essentially that his wife would be killed if they come to know about their marriage, that he would not have mentioned this at some stage prior to the hearing, particularly in his detailed statutory declaration submitted to the Tribunal.

6. As discussed above, the Tribunal does not accept the applicant is a Sunni convert, therefore it does not accept that the applicant’s wife’s family would want to harm the applicant because he is not Shia.

7. In regard to the applicant wife being Sayyed, the Tribunal notes the country information referred to in the delegate’s decision, a copy of which was provided to the Tribunal, that Sayyed’s can marry members of other communities and any such restrictions on this comes from the community itself. It was noted that marriage restrictions are more strictly applied for Sayyed females than males and that a woman wishing to marry outside the Sayyed community would find it very difficult to persuade her family to agree to this. In the present case, the fact that the applicant’s wife’s parents agreed to the applicant’s marriage to his wife, does not suggest that her parents objected to their union on this basis. The Tribunal does not accept that if the applicant’s wife’s extended family would want to kill his wife as a result of the applicant being non-Sayyed, that her parents would have approved of their marriage. While the applicant claimed that her parents realised if they did not allow his wife to marry him she would have died sooner rather than ten years later, for the reasons discussed above, the Tribunal does not accept that the applicant wife had attempted suicide on three occasions and this forced her parents into agreeing to the marriage. The Tribunal has also taken into consideration the reports submitted by the applicant’s adviser following the hearing regarding the violence faced by couples who enter into love marriages and does not accept that in light of the potential life threatening ramifications of such marriages, that the applicant’s wife’s parents would have agreed to their daughter marrying the applicant if there was such a threat to her from her extended family.

   Other issues

8. As discussed above, the Tribunal does not accept the applicant’s claims that his wife’s extended family would harm him if he returns to Pakistan given the lateness in which he raised this significant claim and the fact that his in-law’s essentially approved to the marriage of their daughter to him. The Tribunal is of the view, based on its findings above that the applicant is and always was in fact Shia and not a Sunni convert, and that the applicant’s wife’s family approved of the marriage and that they have not tried to conceal this from others, as was suggested. Nor does the Tribunal accept that the applicant’s decision not to return to Pakistan over the past seven years is indicative of the applicant not being able to return due to his subjective fear of harm.  The Tribunal places considerable weight on the applicant’s evidence that his plan was to get an education and a good job and bring his wife to Australia but things did not go as simply as he presumed.  The Tribunal therefore does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, from his wife’s extended and purportedly conservative family.

9. The Tribunal notes the applicant’s claim that in the last five to six months he has been severely depressed and that he had started seeing [an organisation] for counselling the week before the hearing, after being referred by Red Cross. When asked if he had seen a doctor or someone else before he went to [an organisation], particularly during the 5 to 6 months he said he had been depressed, the applicant stated that he had seen a GP and was referred to a physiotherapist because he had severe back pain and the GP commented that he should see a psychiatrist but he did not see one because he did not have Medicare.  The applicant claimed he saw the GP around the end of 2015, between October and December and again in January 2016 and that he was on medication for his stomach. When asked if it had only been the last 5-6 months that he felt that he had been depressed, the applicant claimed that he has had depression on and off since 2012 and that he once visited a psychiatrist in [City 1]. He saw the psychiatrist four or five times but did not feel comfortable speaking to him with the interpreter. He claimed that he was given medication for depression but could not remember what type.

10. The Tribunal accepts on the somewhat limited evidence before it regarding the applicant’s mental health that the applicant has felt depressed as a result of his long term separation from his wife. It does not however accept that this explains the problems in his evidence as discussed above or that it alleviates the Tribunal’s concerns regarding the applicant’s credibility.

11. The Tribunal has considered whether as a Shia the applicant faces a real risk of serious harm on his return to Pakistan. The Tribunal notes the country information it put to the applicant in the hearing from DFAT Thematic Report, Shias in Pakistan, dated 15 January 2016, in which it was stated that Pakistan continues to face security threats from terrorist, militant and sectarian groups. However, since the commencement of the counter-terrorism military operation Zarb-e-Azb in June 2014, Pakistani military operations against terrorist and militant groups in the FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend has increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of terrorist attacks throughout Pakistan from September 2014 – September 2015. Another source, the Centre for Research and Security Studies (CRSS), said there were 77 per cent less target killings and 57 per cent less terrorist attacks in the first six months of 2015 than in the corresponding period in 2014 (there were 411 target killings and 150 terrorist attacks over this period in 2015, compared with 1,242 target killings and 346 terrorist attacks over the same period in 2014). CRSS and others attribute this decline to Operation Zarb-e-Azb, as well as the 20-point National Action Plan on counter-terrorism. DFAT assesses 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. Although Shias are more prominent during Ashura processions, heightened state protection measures during these celebrations mitigate the threats associated with this greater exposure. DFAT has also observed that some Shias live in enclaves in major cities but Shia communities are generally integrated with Sunnis in their daily lives. The country information provides that there are no laws in Pakistan that discriminate against Shias and there is no official discrimination and little societal discrimination which would limit opportunities for Shias in daily life. The Tribunal does not accept on the country information before it, including the information from the South Asian Terrorism Portal detailing sectarian attacks in mosques in Pakistan between 2000 and 2016 submitted by the applicant’s adviser, that all Shia in Pakistan are at risk of harm and while there is the possibility of violence occurring the chance of the applicant being harmed is one that is remote.

    Conclusions

12. Considering the applicant’s claims cumulatively, based on the Tribunal’s findings above, the Tribunal is not satisfied the applicant has a well-founded fear of persecution at the hands of his family members given perceived dishonourable conduct, religious extremists, namely Sunni tribal members, and the Taliban in [Region 1], for reasons of his religion as an alleged Shia Muslim convert or his membership of a particular social group of apostates of the Sunni religion or because of his marriage to a Shia Sayyed girl. Nor is the Tribunal satisfied the applicant has a well-founded fear of persecution from his wife’s extended family as a result of his marriage to a Sayyed girl. The Tribunal is also not satisfied that the applicant has a well-founded fear of persecution as a Shia. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).

    Complementary protection obligations

13. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

14. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings and reasons of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Pakistan will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

15. The Tribunal has considered whether the applicant would suffer significant harm based on his marriage to a Sayyed Shia girl and his Shia religion. The Tribunal is not satisfied on the basis of the findings and reasons discussed above, 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 he will suffer significant harm for these reasons.  While the Tribunal accepts that there continues to be some sectarian, militant and generalized violence in Pakistan generally, based upon all the country information before it, including the information submitted by the applicant’s adviser, and the Tribunal’s earlier findings and reasons, the Tribunal does not accept that the applicant faces a real risk of significant harm because of sectarian, militant or generalized violence as a Shia.

16. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicant’s life is threatened or that he will be arbitrarily deprived of his life; that the death penalty will be carried out on him; or that he will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

18. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sydelle Muling
    Member