1414141 (Refugee)

[2017] AATA 211

1414141 (Refugee) [2017] AATA 211 (7 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414141

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Rachel Westaway

DATE:7 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 07 February 2017 at 3:02pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Religion – Shia – Political opinion – IMAMIA – Volunteered for charitable organisations – Previous threats and harm to himself and father – No police assistance – Unwilling to relocate – Fears harm from TTP – Credibility issues – Inconsistent evidence – No political profile

LEGISLATION

Migration Act 1958, ss 36(2)(a), (aa), (b), (c), 65, 499
Migration Regulations 1994, Schedule 2

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] July 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 29 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], a social worker. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

5. The applicant provided the Tribunal with a copy of the delegate’s decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

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.

11. The issue in this case is the credibility of the applicant’s claims. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The delegate refused the visa stating that the claims did not have any documentary evidence to support them and that the applicant made contradictory statements in his written claims to those at interview. In essence the delegate found the claims to lack consistency and plausibility. For example he said he received a threatening call in 2009, two in 2011 and three in 2012. His written claims state the calls happened in 2009. The applicant provided limited information about the claimed attack in 2009. The delegate also noted that country information did not support the claim that Shia’s are being forced to convert to the Sunni faith of Islam and that it is not known to be a TTP practice.

13. The delegate did not accept that the TTP would use a Shi’a employee to obtain contact details of wealthy Shias but would in fact prefer to use Sunni sympathisers. The delegate also mentioned inconsistencies in the applicant’s claims that he was contacted by phone when he described it in his written application and then at interview stated he was contacted by letter.

14. The delegate did not accept that the applicant’s childhood friend was responsible for extremist Sunnis targeting him over a failed business partnership and found this implausible.

15. The applicant attended a hearing on 29 February 2016 for a review of his protection visa application and to present oral evidence. He provided the Tribunal with a copy of the delegate’s decision and a submission dated 22 February 2016 from the applicant’s Barrister folio 52 – 215 of the Tribunal file which the Tribunal has given consideration to. The submission included the following:

    Pre-hearing Submission

16. The applicant through his representative disputed the delegate’s decision and provided reasons. The delegate made an adverse finding based on the applicant’s “inconsistent information on his application compared to that at the interview”. The submission gave numerous examples and explanations arguing there was no inconsistency. For example, it was stated that the applicant had employment with [Company 1] and volunteered with Shia charitable organisations. The applicant confirmed that IMAMIA is part of the Shia Ulema Council. He stated that he used his [skills] in a voluntary capacity for Shia charities and where he would provide [advice] to individuals and assist in helping the charities [details deleted]. Therefore he was able to work at the two places. He claims to do community work around [number] days per week outside of work hours. The applicant said he did not intend to be political but such work can be perceived as political.

17. He addressed concerns that the applicant’s explanations of telephone calls were not consistent with the application. The submission argued about the weight given by the delegate to the requirement of evidence and the delegate’s dismissal of oral evidence. The submission argued that the delegate should not have dismissed a document due to an error in date but could have had it forensically examined it. The submission argued that the events describe were not implausible, sighting examples of drive by shootings being common place.

18. He argued that there are significant amounts of country information to support the view that the Taliban do try and force conversion from Shia to Sunni Islam.

19. It argued that the applicant’s speedy application for protection should be noted and that his interest in the Shia community has continued since he has been in Australia and that he had a good career in Pakistan and no real incentive to leave Pakistan.

20. The submission included additional information not previously supplied regarding the profile of the applicant’s father and his experience. The applicant’s father is a retired [official] and also established [an organisation] in Quetta and was [occupation] of that [organisation] for [number] years. He has had many death threats and has been shot at. A document regarding treatment was provided to the Tribunal. The Tribunal also notes that on the applicant’s department [temporary] file CLF[number] folio 69 and 70 that the applicant’s father makes mention of the fact that he is retired from the Pakistan [government agency].

21. It stated that the applicant’s father has not been supported by police when he has tried to initiate FIRs and as he continued to receive death threats, he has tried to relocate three times from 2013-2015. Copies of sale and tenancy agreements were provided to support his claims regarding relocation attempts.

22. Numerous articles, reports and publications were provided to support the applicant’s argument that the Taliban is the perpetrator of violence in Pakistan and will pursue him wherever he goes were provided. These included articles on the Pakistani Taliban, a Danish Institute for International Studies Report on the Taliban (2012), articles on conversion, a job description of the applicant’s position in Pakistan, further employment records and achievement  certificates from the applicant’s work, a 2011 Refugee Documentation Centre paper on police corruption in Pakistan, a 2008 report on reforming the Pakistani police, a 2013 news report on a Shia leader killed in Karachi, a reference letter from the Imam of the applicant’s involvement in his local Mosque, documents supporting to the applicant’s father’s work in [organisation], a court order regarding the FIR, a letter to the police regarding the attack on the applicant, residential documents showing the applicant’s father has moved, media reports of violence in Karachi.

23. At the hearing, an additional media article regarding threats to Shia Muslims in Pakistan was provided.

24. The submission stated that evidence of the applicant’s father’s treatment will be forwarded later to support the claim that he was shot in November 2015 and treated in hospital. This evidence was not forwarded to the Tribunal.

    Claims taken from protection application form C and submission dated [in] July 2013, at folio 29-63 CLF [number]

    ·     The applicant is a Shi’a Muslim, born in Karachi, in the Sindh province of Pakistan.

    ·     He fears harm due to his religious affiliation as a Shia Muslim and his imputed political opinion. He stated he is a middle class, moderate with modernist views and is not especially political and for that reason, extremists in Pakistan will impute him.

    ·     He is a qualified [occupation] and worked at [Company 1] with a successful career.

    ·     In 2006 he joined IMAMIA Organisation Pakistan (IO) – part of the Shi’a Ulema Council (SUC). This group assists poor communities with food, shelter and access to education.

    ·     In March 2009 he received a phone call from a man who spoke Urdu with a strong Pashtu accent. He threatened the applicant telling him he will be killed unless he changes his religion. The applicant reported the call to the police but they took no action.

    ·     He claims he received [number] calls on his office line and mobile phone of a similar nature.

    ·     In December 2009 the applicant returned from a religious gathering when he was beaten by a bunch of people – he again tried to report this to the police but no action was taken

    ·     In June 2012 the applicant received a threatening letter from the Tahrik-e-Taliban Pakistan (TTP) demanding he change his religion and provide them with a list of rich Shia business men from [Company 1]’s database. He would be killed if he did not do this. The applicant claims he did not comply and transferred to another branch in Karachi.

    ·     [In] March 2013 the applicant claims he was driving home from work with a friend when he was shot at by [men] on a motorbike. The bullet went into the boot and through to the driver’s seat. He claims he managed to get away and filed a police report about the incident. The FIR is attached.

    ·     The applicant claims he was an investor in a [business] along with Sunni man called [Mr B]. They were childhood friends. He claims that the [business] was set up in Karachi in an area dominated with Pashtun fanatics. The applicant invested [amount] rupees into the business. A verbal agreement saw the applicant owed [percentage] of the profits annually. The applicant received up to [amount] however [Mr B] stopped paying him and showing him the accounts claiming it had stopped making a profit. He refused to take calls from the applicant and because the applicant is a Shia he believed it was too dangerous to go to the area by himself stating the Taliban will place themselves in Sunni dominated areas and conduct road blocks. People can be asked for ID and if they have Shia names they can be shot. The applicant stated that it is a possibility that he may be responsible for putting the extremists onto him.

    ·     He fears he will be killed if he returns to Pakistan and that given his claimed experiences and country information and media reports, he believes this demonstrates a real chance of being persecuted on the grounds of his religion and imputed political opinion.

    ·     He believes he cannot relocate because his name identifies him as a Shia. He stated that the authorities cannot provide protection.

    ·     The applicant applied for a [temporary] visa to Australia in order to get away from the harm he feared.

    Country Information, DFAT Country Information Report, Pakistan, 15 January 2016

25. Article 20 of Pakistan’s Constitution provides that ‘subject to law, public order, and morality, every citizen shall have the right to profess, practice, and propagate his religion.’ Article 36 guarantees ‘the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services.’ The Constitution also establishes Islam as the state religion and requires all laws to conform to Islamic principles. Articles 41 and 62 of the Constitution state that the President and Prime Minister must be Muslim.

26. Shia mosques and places of worship are located throughout Pakistan and Shias are well represented amongst high level professionals such as doctors and lawyers.

27. There is no reliable, official, information on the size of religious groups in Pakistan. However, an estimated 95 per cent of Pakistanis identify as Muslim. Sunnis are generally estimated to account for approximately 75 per cent of the population and Shias a further 20 per cent.

28. With the exception of Pakistan’s Ahmadi community, most Pakistanis are able to practice their religion freely, although opportunities for religious freedom are generally greater in large urban centres than rural areas. Attacks against religious ceremonies and places of worship remain the greatest impediment to freedom of worship in Pakistan. On this basis, DFAT assesses that there is generally a low level of official discrimination in Pakistan on the basis of religion.

29. Country information acknowledges the existence of the TTP. The most potent militant group in Pakistan remains the TTP – a loose network of Sunni militant groups which have splintered since the commencement of Operation Zarb-e-Azb. The TTP is increasingly being scrutinised by the Pakistani authorities.

30. The TTP has carried out a number of high profile attacks against government security forces, political rivals, civilian infrastructure, and non-Sunni minorities throughout Pakistan. This includes direct attacks using small arms, suicide bombings, car bombs and improvised explosive devices (IEDs), as well as complex attacks using a combination of these tactics. For example, the TTP has claimed responsibility for attacks against the Pakistan military’s General Headquarters in Rawalpindi in 2010; a naval station in Karachi in 2011; Karachi Airport in June 2014; a military-run public school in Peshawar in December 2014; and an Air Force base camp in Peshawar in September 2015. According to the South Asian Terrorism Portal (SATP), there were 3,682 fatalities from terrorist-related violence in 2015. This included 940 civilians; 339 security forces personnel; and 2,403 insurgents.

31. Pakistani military operations against terrorist groups in places such as Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. Credible sources say a 75% reduction in terrorist attacks from September 2014 to September 2015 have occurred.

32. Provincial governments across Pakistan also routinely provide protection for Shia Ashura processions during Muharram. This includes issuing licenses for Ashura processions, closing roads along procession routes, establishing police cordons to search those attending Ashura processions, and disabling mobile phones during Ashura processions to prevent remotely-detonated IED attacks.

    DFAT Thematic Report – Shias in Pakistan, January 2015

33. The Shia population is spread throughout Pakistan. Although Shias do not constitute a majority in any of the country’s four provinces, Shias do form a majority in the autonomous region of Gilgit–Baltistan.

34. Significant numbers of Shias are located in Peshawar, Kohat, Hangu and Dera Ismail Khan in Khyber Pakhtunkhwa; in Kurram and Orakzai Agencies in the Federally Administered Tribal Areas (FATA); in and around Quetta and the Makran coastline in Balochistan; in parts of southern and central Punjab; and throughout Sindh. Large Shia communities live in urban centres throughout Pakistan, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. Although some Shias live in enclaves in these cities, Shia and Sunni communities are generally well-integrated.

35. Shia mosques and places of worship, or imambargahs, are located throughout Pakistan, including most major cities and towns. Shias can (although rarely do) pray in Sunni mosques and vice versa. Both sects also attend a number of famous religious sites, many of which are Sufi shrines.

36. There are no legal barriers to interfaith marriage (i.e. Muslim and non-Muslim) or religious conversion. However, DFAT understands there may be regional variations in the number of intersect (i.e. Shia and Sunni) marriages. According to the Shia community in Lahore, for example, up to five per cent of the city’s Shia population might marry Sunnis, whereas the number of Shia-Sunni marriages in Peshawar is reportedly declining because of adverse familial and societal pressure. When interfaith marriages do occur, one partner (usually the bride) generally undergoes religious conversion. DFAT is not aware of any credible reports of forced conversion between sects.

37. There are many Shia student, community and charity networks. The largest Shia student group, the Imamia Student Organisation (ISO), was established in 1972 to offset the influence of student groups linked to Sunni political parties. An estimated 50-70 per cent of all Shia students are members of the ISO, which operates in all four provinces, as well as Gilgit–Baltistan and AJK. The ISO addresses national issues, including foreign interference in Pakistan. It also advocates for, and provides services to, Shia students. The ISO functions as a feeder organisation for mainstream Shia parties.

38. Shias continue to face a threat from anti-Shia and militant groups, particularly Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) or Ahl-e-Sunnat Wal Jammat (ASWJ). Most of these networks have broad agendas, which include strong anti-Shia sentiments. Various Pakistani Taliban groups operating under the banner of the Tehreek-e Taliban Pakistan (TTP) have also claimed responsibility for attacks on Shias.

1. DFAT assesses that Pakistani authorities are broadly willing to protect Shia communities. The National Action Plan to counter terrorism seeks to combat extremism and sectarianism, while Operation Zarb-e-Azb has resulted in a significant decline in the number of sectarian attacks.

2. However, capacity constraints limit the federal and provincial governments’ abilities to protect the Shia community, which is large and widely dispersed. Although Pakistani authorities continue to capture and prosecute members of sectarian groups, conviction rates remain low.

3. Shia communities frequently make provisions for their own security. This includes physical security of Shia mosques, self-protection ‘scout’ units and lines of security to search those attending Ashura processions.

   Asian Human Rights Commission, The State of Human Rights in Pakistan 2013

4. Various terrorist groups view the Shia community as an easy target since sectarian groups have safe havens in Punjab province where the government has provided them political patronage.

5. Near the end of November, after clashes between Shia and Sunni sects in Rawalpindi, garrison city, that left hundreds dead, the prime minister instructed the authorities to adhere to a 2004 ban of using mosque loudspeakers for anything other than prayer in hopes of preventing their use in stirring further violence and hatred. Nevertheless, banned organizations are holding public meeting and using loudspeakers with impunity throughout the country, as well as graffiti blaming Shias as the Infidels and inciting people to kill them and many of the banned sectarian parties that perpetrate this violence have been allowed to collect funds openly in the streets The role of the Supreme Court in the deterioration of justice is also a cause for alarm. To date the judiciary has acquitted more than 900 militants. The judiciary’s pliant sympathy for fundamentalists and other extremist organizations is a matter of public record.

6. On November 2012, two bomb blasts hit a Shia based community, the Ancholi, Karachi, where 8 people died on the spot. The Tehreek-e-Taliban Pakistan (TTP) claimed the responsibility and announced that killing of Shias will continue.

7. On November 15, at least 11 people were killed and 50 wounded when gunmen opened fire on a Shia Muslim religious procession in Pakistan as it passed a Sunni seminary which lead to violent clashes. The police, who were conspicuously absent during the battle, responded with a four day curfew.

8. The report provided numerous examples of large and small scale incidents of Shia’s being targeted. Shias in Peshawar, as elsewhere in Pakistan, have been under attack in recent months and years[1]. The targeted killing of Shias has been going on and prominent members of the sect [have] been assassinated in the provincial capital of Khyber Pakhtunkhwa. Life in the city for its small Shia population has become risky. Some who can afford to shift elsewhere have already done so, but most have stayed back even if they are wealthy because abandoning Peshawar isn’t something they have ever considered. You cannot simply walk away from a place where you were born and where your near and dear ones are buried”. It goes on to state “Though it is true that the Imamia Imambargah is located on the edge of the troubled, militancy-hit tribal region of Khyber Agency and was an easy target due to its proximity to places where militants continue to have a strong presence despite the military operations, one could ask the question how and why a similar place of worship was attacked in faraway Shikarpur in Sindh, a place that wasn’t known for any noticeable militant activity until now”….” Hayatabad Phase-V, where the Imamia Imambargah, is situated is particularly vulnerable as government offices, educational institutions, quality hospitals and companies offering utility services situated there are frequented by a large number of people. This makes it easier for criminals to operate and terrorists to enter unchecked and carry out attacks”.

   [1] accessed 2 February 2017

9. Most sources consulted by the Tribunal indicate that IMAMIA student organisation was established in 1972 and founded with financial assistance from Iran[2]. Mariam Abou Zahab’s essay on sectarian conflict in Pakistan argues that the Iranian assistance targeted rural, lower middle class students, many of whom began to study Persian in Iran through scholarships; that the ISO emerged from the Engineering University in Lahore; and that it was initially “just organizing rituals in the universities and taking care of the material problems of students” (Abou Zahab, M. 2000 ‘The regional dimension of sectarian conflict in Pakistan’, Centre D’études Et De Recherches Internationales.

   [2] Attachment 5; Irfani, S. 2004 ‘Pakistan’s Sectarian Violence: Between the “Arabist Shift” and Indo-Persian Culture’, Asia-Pacific Center for Security Studies website, p. 152 and accessed 2 February 2017

10. Its main purpose is to advocate for, and service the religious needs of Shia students. In 2003, the then president of the ISO, Syed Nasir Shirazi, denied that the organisation was receiving financial assistance from Iran. He went on to provide other details on the origins, aims, and extent of the organisation in Pakistan. Shirazi states that the ISO had approximately 1200 units across the country and that between fifty and seventy per cent of Shias belonged to the organisation:

11. In an interview with Daily Times, Mr Shirazi said his prime objective was to expand its offices and membership to rural areas, particularly the Northern Areas, where the literacy rate was very low because of poverty. He said according to a survey last year, around “50 to 70 percent” of Shais [sic] were ISO members. “We have a structure of around 1,200 units in Pakistan,” he added.

12. Several reports were found quoting ISO leaders urging greater unity among Sunnis and Shias (and Muslims in general) who live in Pakistan and overseas in countries such as Iraq. As illustrated in the two reports quoted below, the call for greater unity by the ISO occurs in the context of resisting divisions within Islam which it believes are being instigated by the Pakistani government and foreign governments such as the United States. Nonetheless, the reports do suggest that unity among Muslim sects is also a general theological principle of the ISO. The first report of April 2007 from The Frontier Post records such views being expressed by ISO members at a conference in Peshawar. A resolution moved by general secretary of ISO, the conference urged the Muslims to forge unity among their ranks and foil the nefarious designs of the imperialist forces. Addressing on the occasion, Allama Mohammad Jawad Hadi said that Islam preached love, peace and harmony among the Muslims. Speaking on this occasion Prof Dr Qibla Ayaz appreciated the role of the ISO, Pakistan, for the unity among the Muslims. He said that the imperialist forces wanted the Muslims to fight with each other for achieving the interests. He appealed to the Muslims to follow the basic principles of Holy Prophet (PBUH) and crush sectarianism. He said that all the Muslims especially the youth should come forward in this regard. He was of the view that only mutual unity, love and peace could give victory to the Muslims in the world.

13. Central representative of the ISO, Pakistan, Shafiq Bangash said that the unity was the basic requirement of any society. “Our enemy is only imperialist and there is no difference between Shia and Sunni,” he said.

    Evidence taken at hearing

14. The applicant confirmed that he is [age] and arrived in Australia [in] March 2013. The applicant was born in Karachi and his family remain in Pakistan. The applicant confirmed he has not returned to Pakistan since he came to Australia. The Tribunal notes that the applicant applied for protection soon after arriving in Australia.

15. He has [siblings]. The applicant’s mother is a housewife and his father worked in different industries but most recently retired from [a government agency]. The applicant’s father graduated in [subjects]. His father also developed a charitable [organisation] in Quetta where he lived. The applicant is [one of a few children]. [One sibling] is married and has [children] and [another sibling] is a student. [Another sibling] is on a [temporary] visa and is in Australia. He works as an [occupation].

16. The applicant confirmed that he has not returned to Pakistan since coming to Australia. The applicant’s [sibling] has been in Australia since 2009.  

17. The applicant confirmed that he is a practicing Shia Muslim and practices in Australia as well. He confirmed that he is a member of [a certain organisation in Australia] which is a non-profit registered organization which stands for the preservation, propagation and practice of articles of faith among Shias.  He stated that he attends many events, generally on Thursdays followed by prayers. He stated that they are located in [suburb]. He said there are five prayers and it starts after sunset. Sometimes he attends with his [sibling].

18. The applicant confirmed that when he lived in Pakistan he would pray at the mosque four days a week. He stated that his family would also attend at the same time.

19. The Tribunal asked the applicant about his involvement in IMAMIA Student organisation (ISO). He stated that he joined in 2003 when he was at university. He said that he was a member of this organisation which was specifically for students. Their missions was solving problems within the community and assisting with education. He said they would also support students and he was a volunteer. His role was that of [a certain] officer.

20. The applicant stated that he joined the Shia Ulema Council in 2006 and was involved in it until he left for Australia. He stated that they were interconnected. The applicant was introduced to charity work and his father was also very active. The applicant was able to demonstrate a sound understanding of the difference between the two, IMAMIA being grass roots organisation for the welfare of Shia students and student involvement and Ulema  being a political party which would “raise the Shia peoples voice to the Assembly”. In his voluntary role as [a certain] Officer he said he would basically do what needed to be done in the office and also report on major issues such as [details deleted]. It was a shared role. [Details deleted].

21. He said that there are many fanatics and extremists who targeted Shias in Pakistan. He knew as he worked in the organisation and they had information about people. He said he and others would meet and discuss with people who were targeted.

22. He confirmed that in between his paid job, he would volunteer and attend [number] days a week for [number] hours. There was no set time.

23. The applicant confirmed that he worked in a charitable [organisation] in [a certain department] from 2003 to 2005. He then moved to his roles with [Company 1]. He was employed by [Company 1] from 2005 to 2013 when he came to Australia. He started as [occupation] and then a [different role].

24. He claims that between 2009 and 2013 he received threats by phone and mail. He was also beaten and someone tried to kill him.

25. The applicant stated that the first event occurred in March 2009 he received a call on his office number. A male threatened to harm him if he did not change his religion and stop his charitable work. He stated the man knew his name. The call came from an office number and he said you were not a Muslim and to stop working at [Company 1]. It was a short call. He said he knew him and he should change his religion. The Tribunal asked the applicant if the caller expressed his own faith. He stated he wasn’t sure but thought he was a Sunni extremist.

26. The applicant confirmed that he discussed it with his colleagues and they said report it to the police. He registered a complaint with the police. The applicant stated that he did not report it to [Company 1] only to colleagues as he was confused as to what he should do. He said that he did discuss it with colleagues and line managers. He said there was no tracking system at the office for such phone calls. When asked if [Company 1] had policies which he could follow he confirmed that you would go to the police.

27. The applicant confirmed that no similar calls had been received by others in the office.  The applicant stated it was unusual to receive something like this. He confirmed that the Police took down the details but could not track the call. The Tribunal asked the applicant if he received any paperwork pertaining to the police report and he said no. The Tribunal asked if the applicants name was listed on anything and he said no. The Tribunal asked the applicant if he believed he had a profile which would lead people to try and target him. He stated that his work is charitable. He said that within the charity in which he works there are well known people who do have their names listed on public documents but he does not. Yet, he claims that the caller seemed to know him and hence he was disturbed by this.

28. He then stated that on the 28 and 29th December 2009 there was a blast in Ashura. He was there when it happened. The next day there was a huge funeral procession for people who had died near his office. When the blast occurred the applicant went to see people and helped identify victims of the attack and keep notes. His role when volunteering was to [role deleted].

29. The applicant was able to assist with the funeral procession and his voluntary work as he took time off work. He claims he called [Company 1] the following day after the bomb blast and said he couldn’t come as he had personal work and he took 2 days off. He said that on the third day there was a big prayer after the blast and people go to their houses and pray. [In] December 2009 [number] days after the blast and a day after the funeral procession he was bashed with the butt of a gun by [number] people. It was 9 or 9.30pm on a Thursday. He left [Company 1] at 5.30 and then went to the mosque to do his voluntary work stating that they are located at the same place. He stated that the address is [address]. He claims that the perpetrators said he will regret it if he doesn’t stop his work. He said he did not fight them because he could not run away as they had a gun. The applicant was by himself. He went to the hospital and was treated and they applied bandages. He stated “I was going towards my home, on the way there [number] people stopped me and said you will not stop your charitable work and then they hit him with the butt of the gun”. The Tribunal then checked with the applicant why he said he was working that day at [Company 1] and now he said he wasn’t and had the day off. He said he was confused and he definitely had the day off.

30. He stated that there were no witnesses to the attack.  The applicant was asked if he received medical attention. The applicant confirmed he went to the hospital but provided several inconsistent accounts. He stated that first he went in the morning then he went that night and then he stated that he stayed overnight. He stated that he stayed outside in the hospital and he called his father and he came. He said it took 2-3 hours and his father collected him so that is why he said overnight but he didn’t really stay for the full night.

31. The applicant confirmed that he reported the incident to police. He said that he should stay there in the hospital and they will come to him in the hospital. He said there was no official FIR. The police officer noted it on a daily ledger.

32. His family became concerned about his welfare and stressed that he must look after himself and be careful. He said he mentioned it to the Mullah at the mosque and he said change your routines and timing when you come to the mosque.

33. The Tribunal asked the applicant why he believes he was targeted and he said he collects information about Shias and what their daily needs are. He surmised that he has developed a profile. He said he would be sent out with [number] people. They would go together to people’s houses to see if they need help. He thinks they were watching. He confirmed [name] was also experiencing this. He has since died. The applicant confirmed that he was a man whom he worked with in a voluntary capacity and he was killed by gunshot in 2013.

34. The applicant stated that by 2010 he had become very concerned so he asked his line manager to change his branch because he was worried he might be followed. He also changed his route to work and the organisation. Twelve months went past with no incident but in 2011 he received a call on his mobile. He states that the caller said the same thing - that we know where you work and stay and we know everything. The caller said that he will be responsible for his family’s security if the applicant does not stop. It was a man with a Pashtu accent. The applicant stated that he could not be sure if it was the same man as in the past. It happened during the day.

35. He stated that the same thing happened and he mentioned it to his line manager and then he didn’t think he shouldn’t tell work because it might have something to do with his personal situation. He was concerned that it might not be good for his career. He claims he reported it to the police and a daily ledger report was made. The Tribunal asked the applicant to explain why they would not do and FIR. He said that because it is the first time he has been in this area they cannot make an FIR. The Tribunal explained that this is not normal. The applicant said that they would not do an FIR. They said perhaps it is a personal matter.

36. The applicant stated the next incident occurred again in 2011 on his mobile. He went to the police again and they said that they will try and trace the call but they didn’t. The applicant stated that he did not want to tell his employer however he did discussed it with his colleague. The applicant stated that the person on the end of the call asked for contacts details of [Company 1]’s customers who were Shia businessmen. The Tribunal asked if the applicant found it hard to accept it was a legitimate call – (given no name, details of where to send the information were provided). He said he was abused, told to listen and then they hung up. He had no time.

37. He claims that he requested that [Company 1] transfer him to another location. He stated that he used the excuse that it was too far from home – they moved him again in 2012. In 2012 the applicant had already moved and he received a call again. He said that he assumes that if they were ready to receive the information they would tell him where and when.  After the transfer he was promoted to the position of [position].  He received another call – they said we know everything and all the branches you are running to and if you don’t stop you will die. He said it was hard to concentrate and he thought people were following him. He said his work was affected. He said his father was asking him what is going on.

38. In 2012 he claims that the big incident occurred – he received a letter to his home. It was threatening. He said he changed his routes to work and home. The letter detailed the location of where the applicant attends school and stated they knew where the applicant works and again threatened him if he didn’t fulfil their needs.

39. The applicant’s father said it demonstrated that the applicant faces serious harm – he mentioned it to the Mullah who he worked with and asked if he reported it to the police. He said yes, but despite this the police refused to file the FIR stating it will be a problem in the future for us and you and he was threatened as well – information can be leaked and create problems.

40. The applicant stated he was worried about his life and his family and he said it was very unusual and the letter was hand written and hand delivered. It was left at the applicant’s home. The applicant asked his father to send it to him. The applicant stated that he was worried and he thought about going to another country so he applied to come to Australia in 2012.

1. [In] March 2013 the applicant stated he was fired upon. He was accompanied by his friend and they were going to the friend’s house. He picked up his friend to take him to [Company 1] as he owed the applicant money. They were on their way to [Company 1] in a car. [Number] men on one motor bike fired at the car on the applicants left side. They were shouting at the applicant and his friend “[name]”.  He was on the right side and the applicant stated they fired two shots.

2. The applicant turned into a dead end street. The motor bike men followed the applicant’s until they saw the armed station guard. The station guard gave him water. The friend was with him. He was so upset he couldn’t understand what happened. He was not in a position to drive. His friend took him to the police station. The officers at that time were [language] and Urdu speaking people.  He explained the details as to who was driving. He said it must be a personal matter and didn’t take it seriously. He explained that he faced these problems before but they didn’t make any investigations.

3. The Tribunal asked if the station guard was a witness and the applicant said he didn’t want to be a witness in case he was embroiled in the case. The applicant stated that no one would be a witness in Pakistan and the Tribunal stated that it disagreed with this point because it was a significant generalisation.

4. He stated that the police were requested by him to go but they didn’t. They did take a witness statement from the applicant’s friend. The applicant stated he contacted his friend and dropped him home. He was stressed and didn’t understand. He said the police investigation was so bad and nothing was ever reviewed. He stated that the police were not able to help.

5. The applicant said he left for Australia after a week and there was no follow-up from the police. He wasn’t able to ask the police for anything and he never received any further threatening calls as “they thought their work was done” – he explained whatever it is they wanted to do it was done.

6. The applicant confirmed his house was approximately [distance] from where he works and that when he changed branches, they were in similar proximity to his home. The Tribunal put to the applicant that this seemed unusual in that the applicant was attempting to ‘relocate and avoid being found by the people he claims were after him. The applicant stated that given the size of the population he felt that a move within that proximity would be ok.

7. In November 2015 the applicant claims his father was shot. Prior to the shooting he too received similar threats and had to change houses. In 2013, it became so bad for him he sold his home after 4 months at a loss because he was so desperate.

8. Country Information was put to the applicant regarding Shia IMAMIA and also the TTP, noting that country information did not support the applicant’s claims of conversion and that people in Pakistan could generally practice their religions in peace and that Shia and Sunnis have attended the same Mosques. In addition to this it was put to the applicant that in recent months the amount of attacks by the TTP have decreased by 75%.

9. The applicant disputed the country information. He claims that there are many examples that this is not the case. He provided examples of a news report that al qaeda and the Taliban are still very present in Pakistan and mentioned they were in the four provinces he has lived. He asked the Tribunal to consider the Dawn News on 21 February 2016 which shows these issues when a Pakistani intelligence document was leaked. 

10. The Tribunal discussed relocation with the applicant. The Tribunal discussed country research explaining that the applicant appears to have relocated in close proximity to where he claims the TTP extremists exists and that there are many parts of Pakistan where he could live outside of Karachi such as Lahore where he may not have a profile. He is educated and could find employment and there is a diversity of ethnicities. He said that being an Urdu speaking Shia who doesn’t speak other dialects he can’t hide in Karachi and where else could he go? He claims that he doesn’t speak Punjabi so it is hard. The applicant said his name, his language and the fact the Taliban have cells everywhere, know him, have targeted him in spite of him moving around means relocation is not an option at all.

11. The applicant also asked that it be considered that his father was targeted and shot since the applicant has been in Australia. He claims it was punishment because the applicant left Pakistan and he also believes his father was part of establishing a Shia charitable organisation and practicing in the mosque every Friday. The applicant said that he was specifically targeted. He said he relocated three times and it was not easy.

12. The Tribunal interview [Mr A], a witness for the applicant. He stated he was also involved in IMAMIA and had a family association with the applicant in Pakistan. He has seen him working 3-4 times at IMAMIA. [Mr A] said it was around 2007-08 in Pakistan. He confirmed that they were not close friends. He said there was a family connection and the applicant was doing charity work with [Mr A]. He confirmed that they both volunteered there and raised funds and collected donations.

13. The witness came to Australia in 2009. He confirmed that he knows the applicant as a practicing Shia Muslim in the Mosque at [suburb] where they both attend. He said that he sees him monthly and he said that the witness is known for fundraising for the community. He was mentioned by the Mullah for his involvement in charitable work. He confirmed that the applicant was one of the key fundraisers within the community. The witness said that he doesn’t know the applicant’s family.

14. The Tribunal asked the witness if he knew about the applicant’s father being shot and he confirmed he was aware through the Shia Ulmer Council but he did not know the details.

15. The Tribunal asked the applicant’s representative if he had any comments and he stated no, only that the applicant has coped with this very well. And reliving this is hard but he has explained it. He said that the trauma of his father being shot has caused him to struggle and can’t afford to do things

    FINDINGS AND REASONS

16. The Tribunal accepts on the evidence before it that the applicant is a national of Pakistan. The Tribunal has assessed the applicant’s claims against Pakistan as their country of nationality for the purposes of the convention and their receiving country for the purposes of s.36(2)(aa).

17. The Tribunal accepts that the applicant is a Shi’a Muslim, born in Karachi, in the Sindh province of Pakistan based on the documentary evidence of file.

18. The Tribunal accepts that the applicant fears harm due to his religious affiliation as a Shia Muslim and his imputed political opinion, namely his modernist views. The Tribunal accepts the applicant fears harm from religious extremists in Pakistan such as Tahrik-e-Taliban Pakistan (TTP). The Tribunal accepts that the harm he fears equates to serious harm namely death if he does not convert or abide by the claimed demands of the TTP.

19. The Tribunal accepts based in the consistent and detailed oral evidence provided by the applicant and his witness that he was a volunteer for IMAMIA Students Organisation which is a Shiite Muslim students' organisation in Pakistan and also the Shi’a Ulema Council. The applicant was able to articulate in detail his involvement and understanding of the organisations.

20. In considering the applicant’s documentary evidence, country information and media reports provided in the applicant’s submission and available to the Tribunal, the Tribunal accepts that Shia Muslims are a minority in Pakistan and account for approximately 20% of the population. The Tribunal accepts evidence provided by the applicant and available to the Tribunal that Shia Muslims have faced targeted attacks in Pakistan. However, the Tribunal does not accept that the applicant as a Shia in Pakistan faces a real risk of significant harm any more than any other Shia in Pakistan, nor does the Tribunal accept that the applicant faces anything more than a remote chance of serious harm because he is a Shia in Pakistan.

21. The Tribunal does not accept that the applicant’s voluntary work with IMAMIA Student organisation (ISO) or the Shi’a Ulema Council would be sufficient to make him high profile and as such targeted by extremists or the TTP. The Tribunal has considered the voluntary nature of the applicant’s role, the fact that it is part time and the fact that the organisation itself is made up of thousands of members of which the applicant would be one or many and not holding a leadership role or a role which is high profile. The Tribunal has considered country information before it indicating IMAMIA has over twelve hundred units across the country and an estimated 50-70 per cent of all Shia students are members of the ISO, which operates in all four provinces. The evidence provided by the applicant describing his voluntary work after he finished his paid employment did not support a person with a profile which would be significant enough to be targeted by extremists given the size of the organisation. The Tribunal considers voluntary work of [number] days a week for [number] hours at a time and without his name on public documents to be highly unlikely to attract the attention of extremists. This is further supported by the country information that indicates that IMAMIA Student organisation in general promotes unity amongst all Muslims so whilst the country information in general does present examples of Shia/Sunni violence and attacks against IMAMIA, the applicant himself does not have a profile which the Tribunal accepts is big enough to be targeted individually, nor does the association in general encourage attacks in that they do not promote sectarianism.

100.   The Tribunal has considered the claim that the applicant’s profile is enhanced by the fact that he is senior in the [industry] and works with wealthy Shia clients. The Tribunal accepts that the applicant worked in the [industry] with high net worth clients however there is no country information to indicate that an employee of [that industry] dealing with wealthy Shia’s would be specifically targeted. The Tribunal acknowledges that [certain organisations] have been targets of violence, but does not accept that the applicant as an individual would be targeted.

101.   The Tribunal has considered evidence regarding the applicant’s father enhancing the profile of the applicant through his work building [organisations], fundraising for Shias and also as a retired [government agency official]. The applicant has claimed that his father was shot at and sustained injuries when the applicant was in Australia and that this supports the claim that his father’s profile would further enhance his profile as a target. The applicant in his submission stated that he will provide medical evidence to support the claim that his father was injured. At the time of writing the decision, no medical evidence was supplied by the applicant to support this claim. The Tribunal notes that no further attempts to harm the applicant’s father or his family have been presented. The Tribunal also notes that the applicant was in Australia at the time of the claimed shooting and that violence in Pakistan generally is greater than in many countries. The Tribunal is of the view that if the applicant’s father was of interest to extremists either because of his own claimed profile or the applicant’s, then further attempts to harm him would have been made.  Given the applicant claims to have evidence of the shooting and has not provided it to the Tribunal and there is nothing before the tribunal to support these claims. The Tribunal is in receipt of evidence that the applicant’s father has relocated on several occasions. Copies of a sales agreement and tenancy agreements were supplied. However, these do not necessarily support the claimed attack or explain the reasons why he moved. The Tribunal does not accept that the applicant’s father was shot at because of the applicant’s profile or his own and the Tribunal does not accept that the applicant’s father has a profile which would increase the applicant’s should he return to Pakistan.  

102.   The Tribunal accepts that the applicant was an investor in a [business] with a Sunni man called [Mr B] and that the business relationship ended badly. However, there is nothing before the Tribunal to support the view that extremists would be interested in targeting the applicant because of failed business dealings between a Sunni and Shia business associates that had previously had a strong working relationship and had been old school friends. The Tribunal does not accept that such an event would cause the applicant’s former business partner to report him to extremist who would then target the applicant. Such a scenario seems unlikely and farfetched.

103.   The Tribunal will now turn its mind to the applicant’s claims that he was the target of threatening telephone calls and a targeted shooting. The applicant claimed that in March 2009 he received a phone call from a man who spoke Urdu with a strong Pashtu accent who threatened him with death unless he changes his religion and that the applicant reported the call to the police but they took no action and that he received [number] calls on his office line and mobile phone of a similar nature. There is no information before the Tribunal to indicate that extremist organisations such as the TTP have an objective of conversion. The Tribunal put this country information to the applicant and whilst noting his response, the Tribunal remains concerned that this claim remains unsupported by country information relied upon by the Tribunal. Furthermore, given the Tribunal’s findings that the applicant does not have a profile sufficient to make him a target of extremist organisations, [number] calls to the applicant stating he must convert seem illogical and farfetched. If the applicant had a profile and if the applicant was a target it seems unlikely those extremists would call the applicant [number] times to tell him to convert or he will be killed. It would seem more logical that the applicant would be killed. The Tribunal does not accept that the applicant received any requests to convert and as such, the Tribunal does not accept that the applicant tried to report this to the police. The Tribunal finds these claims are not credible.

104.   The Tribunal does not accept that [in] December 2009 following voluntary work after a large funeral process the applicant was bashed with the butt of a gun by [number] people who told him to stop his work and that he again tried to report this to the police but no action was taken. The Tribunal finds this claim to lack credibility because of the several inconsistent accounts put to the Tribunal. Initially the applicant stated that he was working that day at [Company 1] and then he said he wasn’t and had the day off to assist with the funeral. The Tribunal put these inconsistencies to the applicant and his response was that he was confused and he definitely had the day off. The applicant was asked if he received medical attention. The applicant confirmed he went to the hospital but provided several inconsistent accounts. He stated that first he went in the morning then he went that night and then he stated that he stayed overnight. When this was put to the applicant he clarified that he stayed outside in the hospital and he called his father and he came. He said it took 2-3 hours before his father collected him so that is why he said overnight. The Tribunal finds the claim with its inconsistencies was not explained convincingly by the explanations of the applicant’s father taking a long time to pick him up. Furthermore the Tribunal is also of the view that it is unlikely that injuries that required bandages would require hospital treatment. The Tribunal does not accept this claim and finds that the applicant is not a credible witness and his claims are not credible.

105.   The Tribunal does not accept that [in] March 2013 the applicant was driving home from work with a friend when he was shot at by [number] men on a motorbike. The bullet went into the boot and through to the driver’s seat but he managed to get away and filed a police report about the incident. The applicant confirmed that there was a witness but claims the witness did not want to be a witness and that this is normal in Pakistan. However the applicant’s friend who was in the car was prepared to be a witness and these statements contradict each other. The applicant stated that he went to the police and yet they were not prepared to make an FIR. The Tribunal does not accept this statement given the country information before the Tribunal indicates this is the type of situation where the police would make out a First Incident Report (FIR) and would compel the witness to provide evidence. The Tribunal put to the applicant at hearing its concerns regarding this incident and does not accept that applicant’s explanation. The Tribunal; finds that this claim further  detract from the applicant’s credibility and as such finds that the shooting did not take place and the applicant’s claim is not credible. Whilst the Tribunal notes that the applicant has provided an FIR to support this claim, the mere existence of an FIR does not confirm that event took place but rather that an incident was reported.

106.   The Tribunal has considered the applicant’s claim that in June 2012 he received a threatening letter from the Tahrik-e-Taliban Pakistan (TTP) demanding he change his religion and give them with a list of rich Shia business men from [Company 1]’s database or he would be killed. Whilst the applicant stated in his protection application that this came in the form of a letter, the applicant stated at hearing that this request was also made over the phone. He stated that the letter detailed the location of where the applicant attends school and stated they knew where the applicant works and again threatened him if he didn’t fulfil their needs. The applicant claims he transferred to another branch in Karachi. The applicant explained the several relocations to branches that he made on the bases of the letter and threatening phone calls and does not accept that branch transfers would necessarily support the claimed fears that applicant had. Furthermore the Tribunal considers that such requests of personal contact details, as the delegate also put to the applicant are highly unlikely and that if extremists wished to obtain inside information on high net individuals then they would go to their own sympathisers within [Company 1]. Given the credibility findings above and the inconsistencies in the manner in which the threat was made to the applicant, the Tribunal does not accept that the applicant received a letter or phone call from the TTP as detailed above or that his transfer to different branches in [Company 1] was motivated by fear of the TTP.  The applicant stated that the person on the end of the call asked for contacts details of [Company 1]’s customers who were Shia businessmen. The Tribunal asked if the applicant found it hard to accept it was a legitimate call – (given no name, details of where to send the information were provided). He said he was abused, told to listen and then they hung up. He had no time. The Tribunal finds that this explanation seems highly unlikely and that if such information was required then details of when and where the information was to be sent would have been articulated clearly. Given the inconsistencies in this claim from the applicant’s initial paper application to his oral evidence and then the implausible account of the threat which contained no specific details of delivery of the information, the Tribunal finds these claims not credible.

107.   The Tribunal has considered the applicant’s claim that his father received a death threat telephone call in April 2015 and had previously tried to lodge an FIR with the police and when receiving no support took the matter to court. The Tribunal acknowledges that provision of a court order at folio 66 of the Tribunal file. However given the credibility findings, the Tribunal does not accept that a court order detailing the claim that the applicant’s father received no help from police necessarily confirms that the incidents took place. Furthermore, the Tribunal notes that even if it were to accept this, it does not necessarily support any argument that the applicant faces harm.

108.   Given the credibility findings and the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution for any reason.

109.   For the reasons outlined above, the Tribunal is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there would not be any real risk of the applicant suffering significant harm now or in the reasonably foreseeable future.

CONCLUDING PARAGRAPHS

110.   For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) of the Act for a protection visa. It follows that he is also unable to satisfy the criterion set out in s.36(2) (c).

111.   There is no suggestion that the applicant satisfies s.36(2)(b).

112.   As he does not satisfy the criteria for a protection visa, he cannot be granted the visa.

DECISION

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

Rachel Westaway
Member