1416635 (Refugee)

[2016] AATA 3066

1416635 (Refugee) [2016] AATA 3066 (5 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416635

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Roslyn Smidt

DATE:5 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 January 2016 at 10:38am

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 is a citizen of Pakistan applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 2 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The 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:

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

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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

    The applicant is a [age] year old man from Lahore in Pakistan. He is a married and has a [child], born in [year]. His parents are deceased. He has one surviving brother and [number] sisters.

21. The applicant completed his education in [year] when he obtained a [degree]. In [year] he purchased a vehicle which he used to transport passengers until [year]. In [year] he began a business manufacturing [products] and in [year] he opened a [specific] business.

    Protection visa application

22. The applicant applied for a protection visa [in] February 2011. The following is a summary of the written and oral submissions he provided in support of this application.

23. The applicant was born into a Sunni Muslim family. However, in 1997 he met a Shia man called [Mr A] who was a customer at his [business]. They became close and discussed the Shia religion. The applicant was also in influenced by a Shia theologian called [Mr B]. The applicant decided to change religion because there are no Shia terrorists. He taught the Shia religion to [one] brother. [In] June 2000 they both converted at a ceremony attended by [Mr A] and other Shias and began to attend Shia gatherings during the religious month of Moharram with his brother.

24. The applicant’s conversion deeply angered members of the Sunni community, particularly those belonging to one of the emerging terrorist groups operating in his area. The applicant, his brother, [Mr A] and other Shias organised rallies and processions against these terrorist groups.  As a result they became prominent in the local area and Sunni terrorists started to gather information about their whereabouts.

25. [In] November 2003 some terrorists came to the applicant’s office and started shooting. His [brother] was killed and the applicant was serious injured.  The applicant lodged a first information report at [a] Police station.  Following this he began to receive threatening telephone calls to force him to drop the case.  The callers also demanded that he give money for work against American invaders in Afghanistan and drone activities in Pakistan. The callers threaten to kill him if he did not comply.

26. The applicant went into hiding after his brother’s murder and remained in hiding until he came to Australia.  He continued to live at the same address, but instead of going to his workplace every day, he only went 2 or 3 times a week. Despite these precautions he was attacked at his workplace between 30 and 35 times by people armed with sticks, knives and pistols who beat him and his employees and tried to kill him. However, his office was on the main street so they were no able to complete their task. 

27. During the delegate’s interview the applicant was asked if he could avoid problems by relocating to a Shia area. He responded that he would not lie about his conversion.

28. The applicant applied for and obtained a visitor visa for Australia which was granted [in] December 2013.

29. In January 2014 Sunni terrorists entered the applicant’s office and beat him and his employees. He fled to [Country 1] [in] January 2014, but returned home [in] January 2014.  [In] February some Sunni extremists lodged a complaint against him. [Within days] the applicant left Pakistan.

30. The applicant’s family continues to receive threats from fundamentalists who want to know his whereabouts.

31. In addition the applicant provided the following documents to the Department.

    • A copy of an affidavit signed by [Mr A] which states that the applicant and his brother had converted to Shia Islam in June 2000 and the applicant’s brother was murdered [in] November 2013.
    • An English translation and a copy of a first information report dated [in] November 2003 which states that the two unknown boys on motorcycles had shot at the applicant and his brother at the applicant’s workplace and this brother had died in hospital of his wounds. It states that the attack was related to the fact that the applicant and his brother had converted from Sunni to Shia Islam.
    • An English translation and a copy of first information report dated [in] February 2014 which states that the applicant had been accused of shooting and killing a man [Mr C] because [Mr C] had murdered his (the applicant’s) brother in 2003.  It states that the police had received information from [a] Hospital in Lahore regarding the death.
    • A copy of his passport which indicated that he had travelled outside Pakistan on a number of occasions, including to [Country 1], [and two other countries] in 2006 and to [three other countries] in 2012 and [Country 1] in 2013.

    Delegate’s decision

32. The delegate noted that the applicant had continued to attend his work place regularly during the time he claimed to be under threat and observed that the groups which he claimed were targeting him could easily have killed him had they wished to do so. He also noted that that the applicant had travelled overseas on a number of occasions following his brother’s murder, but had never sought protection. The delegate found that this indicated that the applicant was not fearful of harm from Sunni Muslims in Pakistan. The delegate also noted that the applicant had not provided any written evidence of his conversion and doubted that he had converted to Shia Islam or that his brother had been murdered. The delegate did not accept that the applicant had been faced a particularly serious attack at workplace in January 2014. He found that this claim was concocted in order to support his claim for protection in Australia.

    Review application

33. The applicant applied for review on 7 October 2014. A copy of the Department of Immigration and Border Protection decision record was attached to this application.

    Submission dated 9 November 2015

34. The applicant provided a submission which repeated the claim that he and his brother had converted to Shia Islam. He said that Sunni Muslims were very strong in Pakistan and that a number of terrorist groups saw Shias as disbelievers who should be killed. He said that his brother had been shot to death in November 2003 at his (the applicant’s) office and that he had also been seriously injured in that attack.

    With regard to the issue of relocation, it was submitted that this was not possible because it would have been expensive and there was a possibility that the applicant might still have been found.

35. With regard to the applicant’s failure to seek protection while abroad, it was submitted that the applicant was only away for short periods and he thought that circumstances in Pakistan might improve. However, this did not happen and the threat became even more severe and life threatening, so finally he decided to seek protection.

36. A number of documents were submitted, including copies of those listed above and the following:

    • A death certificate which states that [the applicant’s brother], son of [the applicant’s father], was murdered [in] November 2003.
    • An English translation of an FIR dated [in] December 2013 which states that the applicant had reported that at [time] on [a date in] December 2013 unknown people on motorcycles had come to his place of work and shot and seriously injured two of his employees named [name] and [name]. It also states that his [brother] was murdered after being shot and that the applicant had been attacked about 35 times between 2004 and 2013.

    Tribunal hearing

37. The applicant attended a hearing of the Tribunal on 2 December 2015. The following is a summary of the evidence provided on that occasion.

38. The applicant said that his business employed between 2 and 6 staff. They were all Muslims, but he did not know whether they were Shia or Sunni as he never asked. The business ceased operating when he left Pakistan.

39. I asked the applicant how his enemies were able to lodge a false first information report making accusations against him. He said that this was possible in Pakistan.  I asked him what he had been accused of in the report. He said that he had been accused of firing some shots because he was angry because of his brother’s murder in 2003. I asked him if anyone was injured during the alleged shooting. The applicant appeared to have difficulty understanding my question. At one time he appeared to say that he was accused of killing someone and mentioned a number of terrorist groups. When asked to clarify who he had shot he said that he had not been present at the time and did not know. I noted that he had provided a copy of the FIR and asked if he had read. He said that he had read the document and it was the reason he came to Australia. I observed that in that case I expected that he would be able to recall precisely what the accusation against him was. The applicant said that he had been under pressure and just wanted to escape and added that he had been in [Country 1] when the accusations were made. I noted that he had previously said that he had been in [Country 1] [for a few days in] January 2014, then returned to Pakistan and according to the FIR the accusations were made [in] February 2014, 5 days before he left for Australia. The applicant said that he had been attacked by the terrorist groups when he returned from [Country 1].  I noted that he had previously stated that he had been in Pakistan at the time the FIR was issued.

40. I advised the applicant that the FIR stated that he had been accused of killing someone called [Mr C] and observed that he did not appear to have recalled this. The applicant said that there appeared to have been some misunderstanding, but he had returned from [Country 1] and then been attacked and then an FIR was lodged. When asked if he knew [Mr C] and whether anyone had actually been murdered, he said that he did not know.

41. I advised the applicant that it was my understanding that the Pakistani police were required to investigate allegations made in an FIR. The applicant said that he had not had any contact with the police following the lodgement of the FIR and added that if they had found him they would have captured him. He said that he had gone into hiding, sometimes staying at his in-laws house and sometimes with friends. He was able to leave through the airport without any problems because nobody knew he was intending to leave in that way. 

42. When asked if he had considered hiring a lawyer to contest the charges made in the FIR, the applicant said that this would not have helped as the more powerful party always prevailed in Pakistan. When asked if his family had experienced any problems since his departure, he said that they had left the area to avoid problems.

43. When asked how he first became aware that the false charges had been laid against him in February 2015, the applicant said that the people in the area had told him that the police were coming and warned him to stay away. I asked him how the people had come to know about the FIR and that the police were coming.  He said that when the police came, it mean that something was wrong and everyone ran away. I asked him to clarify how he first became aware of the FIR and the accusations it contained. He said that he found out when the police came and told him there was a charge against him and that he was charged with murder. When I asked him to confirm that the police had spoken to him, he said that the police had not spoken to him and added that they would have arrested him if they had found him. He said that people in the surrounding area gave him information by telephone. I observed that he appeared to have said that the police spoken to him and added that it was difficult to understand why the police would have given other people in the area information about charges against him rather than arriving unannounced at his work place to arrest him. The applicant responded that after returning from [Country 1] he had stopped going to work because he was afraid that the police would come and catch him.  He went to other cities and got information from friends about what was happening.

1. I asked the applicant why he had returned to Pakistan from [Country 1] if he was so fearful that he had to go into hiding from the time he arrived home. The applicant said that he had only gone to [Country 1] temporarily and returned because he thought that the situation would improve. He added that this was before the false FIR was lodged.  I asked him to confirm that he had only gone into hiding after the false FIR was issued. He said that he had been in hiding before the FIR was issued.

2. I noted that the applicant had converted to Shia Islam in 2000 in part because he was influenced by [Mr B]. He confirmed that this was correct. He said that he had not read any of [Mr B’s] books, but he watched [Mr B] on the television. I asked how [Mr B] had influenced him to change his religion. He responded that the Sunni sects were all fighting with each other. I asked him again what [Mr B] had said that influenced him to convert. He responded that in 1997 a friend told him that [Mr B] was a good scholar. I asked again what [Mr B] had said that made him decide to change his religion. He said that it was not just one thing, but he said things that attracted people. I asked him to tell me one thing that [Mr B] had said that he found attractive. The applicant said that in one speech [Mr B] had said that no matter how many Sunnis there were, they were always fighting, but the Shia were peaceful and did not fight. When asked if [Mr B] had said anything else which influenced his decision to change his religion, the applicant said that he had listened to many speeches and he thought that what [Mr B] said was the closest to true Islam, for example he said his highness Ali was right and he had the closest relationship to the Prophet and he was deprived of his rights. 

3. I asked the applicant if any members of his family had converted to Shia Islam apart from him and his brother. He said that his wife was “divided” and could not decide and that his in-laws were “close” and participated in Shia processions and celebrations, but they were Sunni.  He said that at first his parents had not approved of his decision to convert, but later they came to accept it.

4. I asked the applicant how he had practiced his faith when he was a Sunni. He said that he had not known much about his religion and had not had any particular argument with it, but when he listened to the speeches of [Mr B] and saw what Sunnis were doing, he converted.

5. I asked the applicant how he practiced his religion as a Shia. He said he did not pray as much as others, but he sometimes went on processions, adding that these occurred throughout the year but most during Muharran.  He said that he did not observe his religion daily, but went to a place of worship with other Shias every Thursday.

6. I asked that applicant to tell me about any problems he had faced between the time he converted to Shia Islam and the time his brother was murdered in 2003.  He said that they had suffered from small attacks and threats as the groups were getting closer them. When asked what he meant by small attacks the applicant said about four people would come to his office and warn him to leave. When asked if anyone was ever injured during these attacks, he responded that someone was injured every time they came. When asked how often these attacks occurred he said that there had been between 30 and 35 attacks in total. I asked him how frequent the attacks were before his brother’s death. The applicant said that he and his brother had kept their conversion a secret, but when they disclosed the fact that they had converted the pressure and attacks started. I asked him when he had disclosed the fact that he had converted. He said that he and his brother had not disclosed their conversion, but when they started to go to processions, people knew. I asked when his conversion became public knowledge. The applicant there was a big attack, but before that there were smaller attacks. I asked again when his conversion became known. He said that it began with pressure over the telephone and people telling him to leave the Shia sect and return to the Sunni religion. I noted that there must have been a time when people found out that he had converted and asked him to clarify when this was. He said that it had been one or two years after he converted.

7. I asked the applicant to tell me about the worst attack he had experienced prior to his brother’s death. He said that before his brother’s death people just came to threaten, adding that they might bring a knife or throw a chair to threaten him. He said that this had resulted in small injuries and that he himself was sometimes injured. For example, on one occasion he was hit on the head. I asked for a rough idea of how often these attacks occurred. He said that there was not particular pattern, they came when they saw a chance to attack.

8. I asked that applicant what steps he had taken to protect himself and his staff from these attacks. The applicant said there was nothing that he and his brothers could do because the Sunnis were in the majority. I noted that businesses all around the world employed security guards to protect their premises and asked why he could not do this. He said that this was not possible in Pakistan.

9. I asked if the applicant had reported any of these attacks to the police. He said that he and people from other shops had gone to the police many times, but he was told the police could not do anything because it was a problem between Sunnis and Shias. He also said that the police did not easily accept FIRs. When his brother was killed he went with a group of 20 people to lodge the FIR, so the police accepted it.

10. I asked that applicant what the police had done after he lodged the FIR relating to his brother’s death. He said that they had not done anything as they never do anything in these cases. When asked to confirm that the police had not investigated the case, he said that they had obtained a report from the hospital where his brother had died.  I asked if the police had tried to find the people who had killed his brother. He said that they had not pursued the real culprits, but had arrested some ordinary people who nothing to do with the case. These people were released after a short while.  He said that this was what the police often did in such cases.  He also said that he had given the police the names of groups he believed were involved in the case, but the police had not written them down and instead had said that the perpetrators were unknown.

11. The applicant said that after his brother was killed members of the terrorist groups told him that he should leave to avoid a similar fate.

12. I noted that the applicant had previously stated that he had been pressured by people not to pursue the case against his brother’s killers and asked why they would have done this if the police were not pursuing the case or looking for his brother’s killers. The applicant said that the police did not do anything as they were also afraid of the groups involved. I asked him again why, in these circumstances, the groups would pressure him to drop his brother’s case. He said that is was not like that, the groups knew they were not at risk of being arrested. He said that they were pressuring him to leave the Shia sect, return to Sunni Islam and join their terrorist groups.

13. When asked the applicant confirmed that there had been 30 to 35 attacks on his workplace after he converted to Shia Islam and that someone was injured during all of these attacks. When asked to describe the worst injury he himself had received, he said that he had been badly [injured] when someone hit it with a knife and he was still receiving injections for the [injury] because it had not been treated properly in Pakistan.  When asked to describe the worst injury suffered by his employees during these attacks, he said that his employees were threatened or frightened slightly, but he was the real target. I asked him to confirm that none of his employees was injured during these attacks. He said that his employees were injured, but not as badly as he was. When asked for details he said that his employees were slightly beaten or cut with knives in order to frighten them and so that he would be aware that the terrorists had come to his shop. I asked whether any of his employees had left his business after these experiences. He said that this was a common occurrence in Pakistan and he paid his employees well so they stayed.

14. I noted that the applicant had previously stated that the terrorists had wanted to kill him. The applicant said that this was true, but they had not been able to catch him. He said that if they had caught him he would have been killed. I observed that the terrorists had caught him many times. He responded that at that time they had just been threatening him so he would return to the Sunni faith. I asked him when things had changed so they were no longer just threatening him, but wanted to kill him. He said that they had never stopped threatening him and when they lodged an FIR he had to leave. I noted that in previous statements he had appeared to suggest that the people threatening him had wanted to kill him, but now he appeared to be saying that they had been threatening him to make him leave the Shia sect. The applicant said that they had always wanted to kill him, but they were waiting for an opportunity to do so. He said that he avoided being killed by not going to work directly and by hiding. I observed that he had previously said he had been directly confronted by members of the group on a number of occasions. The applicant said that these were only small attacks. He said that if the terrorists had fired shots people would know, so they were looking for somewhere else to carry out such an attack.

15. I asked the applicant why he thought the groups had lodged a false FIR in February 2014. He said that they could have done this at any time to increase the pressure on him. He said that he did not know why the FIR was lodged at that time. He added that before he went to [Country 1] there was a small clash and it could have been related to this attack, but he did not know. He said that the attack was just a warning telling him to come back to the Sunni religion. He said that four or five employees and friends were injured so he thought he should leave the country. I asked him for details. He said that the attackers came to his shop. He and some employees were there. He tried to stay on the side. I asked him who was injured. He said that four or five people were injured. One was called [name] and another was called [name], but he could recall the others names. They were injured with sticks and knives. They were not taken to hospital as this would have caused more trouble.

16. The applicant said that the attack was similar to others he had experienced. I asked him why he not fled the country earlier if this was the case. He said that he thought if he went away for a while things would settle down.

17. I noted that the applicant had provided a copy of an FIR which he lodged in December 2013 which stated that two of his employees were shot and seriously injured, which was different from the account he had given, and noted that the names in report were different from the names he had given. The applicant said that this was a different event. He said that in the 5 to 10 days between the time that the December 2013 FIR was lodged and the incident which he had been speaking about many incidents had occurred. I observed that in that case, I found it strange that he had not spoken about the incident in the December 2013 FIR because it appeared to be much worse than the February attack. The applicant said that he had not realised I wanted to talk about the December FIR. I asked him whether the attack he had spoken about during which 3 or 4 people were slightly injured had happened before or after the attack in the December FIR. He said he was not sure, because there were many attacks in the 10 day period between the attacks.  When asked he said he was not sure how many attacks occurred during that period, but it could have been 3 or 4.

18. I advised the applicant that I had difficulty accepting that he would have been unable to recall these events more clearly given that they were the reasons he fled Pakistan. I also noted he did not appear to have mentioned these important events previously and it appeared he may have changed his evidence regarding what happened to him and when different events occurred.  The applicant said perhaps this was because he had not been asked about the events before and added that he was no longer young and that he had been under a lot of pressure and had suffered many problems.

19. I noted that the applicant had previously claimed that that he was in hiding for many years but it appeared that he had remained at the same address and that he continued to go to his work place until around the time he left the country. The applicant agreed that he had continued to go to work, but said that he went less often when the pressure increased. When asked if he had remained at the same residential address throughout the time he was in hiding, the applicant said he lived about [number] kilometres from his workplace and the groups who were targeting him did not know his address. When I observed that it seemed strange that they were unable to find out where he lived and that he had never faced any problems at home. The applicant said that he had moved when there was danger he claimed that he had changed his address 3 or 4 times for this reason.

20. I noted that the applicant had travelled outside Pakistan a number of times, but he had always returned and had never sought protection while outside the country. The applicant said that he had a business to run, that the problems he faced were not that bad and he thought he would be able to sort things out.

21. Later in the hearing I again noted that the applicant had previously claimed that he had been in hiding during the time he was being targeted and attacked by the terrorist groups. He said that he had not claimed that he was in hiding, but had said that he had left Pakistan when there were problems. I noted that he had previously stated that he had travelled for business, not to avoid problems.  He said that he sometimes went for business, but mostly to avoid problems. I asked him to give me some examples of when he went overseas to avoid problems. He said that he could not recall these details. I asked the applicant why he had returned to Pakistan repeatedly if he had gone away specifically to avoid problems. He said he only went for short periods of time and then returned.

22. I advised the applicant that I had some problems with his claims. I noted that he had appeared to have difficult providing a coherent explanation of some of his claims, that he appeared to have added new claims about the problems he faced immediately before he left Pakistan, that he appeared not to know the details of the accusations against him in the false FIR which he claims was lodged in February 2014 and that he had not sought protection on the many occasions he travelled outside Pakistan prior to leaving to come to Australia. I also noted the applicant himself had stated that it was easy to lodge false FIRs and that the photocopies of the original documents indicated that they were simple handwritten documents which could it would have been simple to manufacture and advised him that I would be considering whether or not I accepted that this were genuine documents which accurately reflected true events.

23. The applicant maintained that his claims were true. He said that he had spent the previous night with a friend who had a kidney problem and this might have affected his ability to provide evidence.

24. The applicant’s adviser asked for two weeks to provide post hearing submissions. He said that he wanted to clarify some issues relating to chronology as there appeared to be some confusion about when events occurred. I agreed to wait two weeks for further submissions.

    Submission received on 17 December 2015

25. The applicant’s adviser noted that he had provided copies of three FIRs, one relating to the death of his brother, one to an attack on some of his employees and another which contained false allegations against him and was lodged to scare him.

26. The applicant’s adviser stated that the applicant was unable to understand the questions put to him at the hearing and was therefore confused and could not clarify issues which were raised.  In particular it was noted that he had been confused when asked about Shia processions. The applicant understood the nature and significance of these processes and would have been able to provide a full explanation if he had understood what was being asked.

27. The applicant’s adviser noted that the applicant had been asked a number of questions about the manner in which the Pakistani police operated and pointed out that the police in Pakistan area corrupt and would not be able to protect the applicant.

28. The applicant’s adviser also noted that the applicant had been asked whether his employees had remained working for him after the attacks on his shop. He pointed out that unemployment rates are very high in Pakistan and his employee had no choice but to continue to work for him.

29. The applicant’s adviser noted that the applicant asked how he had escaped harm during the most recent attack on his workplace. He stated that the attackers had intended to kill him and had fired randomly, but he had hidden himself and was saved.

30. The submission also noted that the applicant could not move offices because he was a Shia and nobody would rent to him.

    Consideration of claims

31. In assessing the applicant’s claims for protection I have had regard to the applicant's oral and written evidence provided to the Department and the Tribunal and the submission made by his adviser. I have noted in particular the submission that the applicant did not properly understood questions which he was asked during the hearing. I acknowledge that the applicant may have been confused on occasion and have taken this into account when assessing his claims. However, I also note that he was frequently asked to confirm that my understanding of his claims was correct and I do not accept that his understanding of the questions put to him was so poor that he was unable to explain his situation. I also note that the applicant was represented by a lawyer who attended the hearing and assisted him to prepare a post hearing submission addressing issues he felt may not have been properly understood during the hearing. I am confident that the applicant had ample opportunity to provide his claims and explain his situation.

32. For the reasons set out below, I do not find the applicant to be a truthful or a credible witness.

33. In the first place, when asked at the hearing why he had converted to Shia Islam, the applicant was unable to provide a cogent explanation for his decision. He repeated his earlier claim that he was influenced by a Shia friend and a Shia cleric and changed his religion because Sunnis were violent, but Shias were not. When asked for specific information on how the Shia cleric had influenced him, he said that the cleric had pointed out that Sunnis were violent and Shias were peaceful. When pressed for more information he said that the Shia cleric’s views were closest to true Islam, but provided only a very general and vague idea of what he meant by this. As noted in the applicant’s submissions, Sunni community in Pakistan is very strong and there are a number of extremist and terrorist groups who see Shias as disbelievers who should be killed. Deciding to adopt a religion which brought with it the likelihood of violent attack and to participate openly in celebrations of that religion is clearly not a decision which anyone would take lightly. If the applicant had genuinely converted from Sunni Islam to Shia I believe he would have been able to provide a more detailed and convincing account of his reasons for doing so.

1. Second and more significantly, the applicant’s explanation of how he was able to remain in Pakistan for over 10 years after his brother’s death despite being under constant threat from extremists groups who wished to kill him was contradictory and implausible.

2. In his submissions to the Department he said that he was in hiding but also said that he continued to go to work several times a week. He also stated that he had continued to live at the same residential address. At the hearing he confirmed that he had continued to go to his office and initially agreed that he had remained at the same residential address throughout the time he claimed he was under threat from extremist groups, explaining that he had not been attacked at home because he lived [number] kilometres from his office and the groups targeting did not know his address. However, when I observed that it seemed unlikely that these groups would not have been able to follow him and locate his home, he changed his evidence and claimed for the first time that he had moved several times when the situation became dangerous.  He also claimed for the first time at the hearing that he had travelled abroad to avoid problems when the situation became dangerous. However, he was unable to provide any details of when and why he travelled abroad to seek protection or any plausible reason why he had returned to Pakistan rather than seek more permanent protection outside his homeland during these trips.

3. I find the claim that the applicant was able avoid death or serious harm for over 10 years in Pakistan despite being targeted by a group of extremists who wished to kill him by reducing the number of days he went to work far-fetched and implausible.  Furthermore, even if I were to accept that the applicant had changed his place of residence a few times and left the country when the situation became more dangerous (which I do not), I would still find the claim that he was able to avoid being seriously harm implausible. Alternatively, if I were to accept that the applicant had been pursued by a group of terrorists who wanted to kill him (which I do not), then it is not plausible that he would have returned to Pakistan after travelling abroad, which he did a number of times, rather than seek protection outside his homeland.

4. In addition, the applicant claimed in his submissions to the Department and the Tribunal that he was not killed because the terrorists could not find him, which is at odds with the evidence that the terrorist came to his office over 30 times and that he was beaten on at least some of these occasions and implausible given that, as discussed above, he was clearly never in hiding.  When I pointed out during the hearing that the terrorists had found him more than once, he said that they had only wanted to frighten him so he would return to Sunni Islam, but changed his claims again when I noted that this was at odds with his earlier evidence.  He also claimed that he had not been killed because his office was on the main road and the shots would have been heard, which is at odds with his evidence that his brother was killed at his office and the FIR dated [in] December 2013 which states that two of his employees were shot at the office.  I find these inconsistencies a further indication that the applicant has not provided honest evidence regarding his circumstances in Pakistan.

5. Thirdly, the applicant was unable to provide a coherent or plausible account of the problems he faced following his alleged conversion.  He claims that his workplace was attacked between 30 and 35 times prior to his departure from Pakistan. He claims that his brother was killed and he was seriously injured in 2003 during one of these attacks and that his life was at risk following this. During the hearing he said that the worst attack he himself experienced was when he was [stabbed]. When asked about the worst injury his employees had sustained, he responded that they had not been badly injured but then said that they had been “slightly beaten or cut” as a warning to him, which is at odds with the information contained in the FIR dated December 2013 which states that two of his employees were shot and required hospitalisation (see also below). 

6. Fourth, in submissions to the Department he said that he said that he and his employees had been beaten during these attacks and during the hearing he said that someone was injured during every attack. He said that despite these ongoing and quite serious attacks on his staff, none had ever left as such attacks were common in Pakistan and jobs were difficult to find.  While there may be a relatively high level of violence in Pakistan, I do not accept that Pakistani workers are frequently hit and cut at their place of work and it is not plausible that none of his employees left despite being hit and cut or seeing their colleagues hit and cut, several times a year.

7. Fifth, prior to the hearing the applicant provided an FIR which states that two of his employees were shot in December 2013 and had to be hospitalised. This claim was not mentioned in his submissions to the Department. When the events leading up to his departure were discussed at the hearing the applicant spoke about a “small clash” in which four or five people were injured which occurred which lead to his decision to leave Pakistan, but said nothing about a serious attack in December 2013 until I reminded him of the FIR and its contents. When asked why he had failed to mention the more serious incident he said that there had been several attacks around the same time and he had not realised I wanted to speak about the December 2013. I do not accept this explanation. The attack referred to in the December 2013 FIR is the only attack which involves the applicant’s employees being shot and needing hospitalisation. If this attack had occurred I have no doubt that the applicant would have mentioned in his submissions to the Department and that he would have raised it when he reasons for leaving the Pakistan were first discussed during the hearing. I not accept that the applicant’s employees were shot in December 2013 and I find that the FIR provided in support of this claim is a fraudulent document (see also below).

8. Sixth, the applicant’s evidence regarding the FIR which he claims was lodged in February 2014 to scare and threaten him was confused and unconvincing. Despite claiming that this was one of the main reasons he fled Pakistan, he appeared not to have a good understanding of its contents and when I pointed this out he first stated that he had been in [Country 1] at the time, which is at odds with the dates on the document and his passport, then appeared to change his evidence again and confirm that the FIR was issued after he returned from [Country 1].

9. The applicant appeared to be genuinely confused about some of the questions put to him in relation to the December 2013 FIR and I would not have rejected his claims on the basis of this alone. However, this is not only problem with his evidence regarding the FIR. When asked later in the hearing when he had first become aware that an FIR had been lodged accusing him of murder the applicant gave a number of conflicting and implausible answers, stating at different times that he had been warned by his neighbours, that he had been advised by police and that he had been in hiding in other cities and someone had telephoned him to warn him. In addition, it is implausible and convenient for the applicant’s case that members of a terrorist group who had been trying to kill him for over 10 years would accuse him of murder shortly after he was issued a visa for Australia.

10. I do not accept that an FIR was lodged in February 2014 falsely accusing the applicant of murder and I find that document provided by the applicant to be fraudulent.

11. After considering all of the evidence, and taking account of the inconsistent and implausible nature of the applicant’s claims, I do not accept any of them.  I do not accept that he converted from Sunni Islam to Shia Islam in 2000 or that his brother was killed for converting from Sunni Islam to Shia Islam or that he, his employees or his place of business was attacked at any time by Sunni extremists who wanted to punish him for converting or force him to return to his original faith. I find that his claims were concocted by the applicant to support his application for a protection in Australia.

12. In reaching this conclusion I have considered the affidavit signed by [Mr A], the First Information Report issued in [November] 2003 and the death certificate relating the death of the applicant’s brother. However, as discussed above, I do not find the applicant to be a credible witness. I find that he has concocted claims and provided fraudulent documents to support these claims. In these circumstances I also find that these documents are not genuine. The originals are simple documents which could easily be manufactured and I believe that this is what occurred.

13. There is no credible evidence before me which suggests that the applicant faces serious harm in Pakistan for any of the reasons in the Refugees Convention. I am therefore not satisfied that he faces a real chance of suffering serious harm amounting to persecution in Pakistan within the reasonably foreseeable future for any reason in Convention.

14. There is no credible evidence before me which suggests that the applicant there is a real risk that the applicant will suffer significant harm for any reason if he returns to Pakistan. I therefore do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan there is a real risk that the applicant will suffer significant harm.

    CONCLUSIONS

15. 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).

16. 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).

17. 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

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

    Roslyn Smidt
    Member