1419410 (Refugee)

[2017] AATA 1957

1419410 (Refugee) [2017] AATA 1957 (20 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419410

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Rachel Westaway

DATE:20 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 20 October 2017 at 10:20pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Social group – Intelligence Organisation spy – Religion – Sunni Muslim – Imputed Shia – Third country right of entry not applicable – Fear of Persecution – Credibility issues

LEGISLATION

Migration Act 1958, ss 36, 36 (2)(a)- (c), 499

Migration Regulations 1994, Schedule 2

CASES

Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

3. The applicant appeared before the Tribunal on 19 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from [the] Shia Imam at [a religious society in Australia]. 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.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

8. 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’).

   Mandatory Considerations

9. 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.

   Credibility

10. The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for'.

11. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196-197 and 203-204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.

12. However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.

13. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

14. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

15. The Full Court noted that this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.

16. If the Tribunal has 'no real doubt' that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O'Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a 'positive state of disbelief' before making an adverse credibility assessment in a refugee case.

    Country of Nationality

17. The applicant claims to be a citizen of Pakistan and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Pakistan, that Pakistan is the applicants' country of nationality for the purposes of s.36(2)(a) and receiving country for the purposes of the complementary protection assessment of s.36(2)(aa).

    Third Country Protection

18. There is no evidence before me to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant arrived in Australia [in] January 2013 and applied for protection [in] October 2013. He supplied supporting documents which included newspaper articles, a copy of an email supporting his claim and medical documents. Contained within his protection application were the following claims:

    ·     He was brought up in a [village] [distance] kilometres from Rawalpindi in Pakistan.

    ·     He is from a Sunni Muslim family.

    ·     In 2010 he was told by a friend about ISI (Inter-Services Intelligence) who recruit members of the public to assist them in arresting high profile targets. He was interested in this so went to [a military] Camp located on the main [road].

    ·     He met many ISI agents but they did not identify themselves. He met [Official 1] who did identify himself.

    ·     He supplied an email from [Official 1] outlining his role and instructions.

    ·     He received a five hour briefing from Senior ISI personnel and he took an oath of secrecy.

    ·     The following day (in January 2011) he attended a Shia Mosque which was under threat of a militant attack and took notes about what the [religious leader] said and gave them to the [military] camp. The next day he was asked to observe from outside and take notes about people gathering. He saw two men dressed in conservative Islamic clothes on bikes. When they left he followed them but they noticed and sped towards the Red Mosque (A mosque known to be radical). He was then asked to attend the red mosque and observe and take notes on a regular basis. He began to observe a group of about 15 men who would gather on a Friday preaching jihad and discussing their friends in [Country 1].  The applicant passed the information on and senior officials from [military] camp went and verified the information.

    ·     The applicant identified the same men at [another] Mosque. They recognised him and shouted “taghoot’ and fled. The applicant contacted nearby agents who chased and located them and arrested them. The applicant claims he was told they were planning attacks on Shia minorities and army bases.

    ·     He claims they knew he was following them and he became a target for kidnapping.

    ·     First attempt was [in] November 2011 near [Town 1].

    ·     Second attempt was [in] December 2011 near the Highway in Islamabad connecting Lahore.

    ·     Third attempt [in] December 2012 in Islamabad.

    ·     Fourth attempt near [a main road] on his way back on a motor bike from [the] Camp. Five men in a 4x4 car with black windows opened fire with automatic weapons. The applicant sped down narrow streets and escaped.

    ·     The applicant has had it confirmed by ISI that his life is in danger and he must hide and leave the country. They offered to help the applicant.

    ·      The applicant applied for a student visa but did not leave straight away due to his mother’s health.

    ·     He went to [the] camp in December 2012 to inform them he was going to Australia. On leaving he was targeted by four men in a car. One pulled a gun out as they were driving next to him and screamed for him to pull over. He accelerated. They shot at his rear window and two further shots damaged his rear left window. He smashed the car and received minor injuries. He was saved by two ISI men who he claims were following him because of the past issues. He went to [a] hospital and was treated for his injuries.

    ·     The doctor asked if he needed police help and he declined saying it was only and issue with a car accident as he did not want police involved as ISI and police work separately. After he was discharged he went to an ISI safe house for a few days. He returned home and stayed indoors until [January] when he left for Australia.

    ·     He never disclosed his spy work to his family and they thought he had converted to Shia and did not believe him. He called them to say he could not come back to Pakistan. They threatened the applicant and want to renounce the relationship. He claims his family want to kill him. He has received threatening emails and texts.

    ·     He is stressed and under a psychiatrist who has prescribed medicine to him.

    ·     He fears the TTP and affiliated terrorist organisations and those who are anti-Shia and are fundamentalists or extremists and his family.

20. The application was refused on the basis that the delegate found the applicant’s evidence to lack credibility. The applicant applied for review of the decision and supplied the Tribunal with a copy of the delegate’s decision.

21. On 14 June 2016 the applicant provided a submission in support of his review and prepared by his migration representative. The submission noted the delegate’s adverse credibility finding and provided a response. The submission explained the applicant’s “speech impediment and English ability as a cause of him mumbling, answering incoherently and inaccurately”. The submission also explained as a possibility for the inconsistent time frames and kidnapping the applicant’s speech impediment, physical and psychological trauma, length of time between the event and interview, applicant’s ability to describe past events, language interpretation and hesitation in providing the migration agent with confidential information due to a mistrust of authorities.

22. The submission noted the delegate did not place weight on the email from [Official 1] or consider the applicant’s claims pertaining to his imputed religious beliefs. The submission stated the applicant could not seek ongoing medical treatment due to associated costs. It stated that the applicant’s departure could be seen as confirmation of his Shia faith. It stated that the applicant does not have family support and would struggle to return to Pakistan.

    EVIDENCE AT HEARING

23. 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.

24. The applicant stated that he understood why his visa application was refused. He said the main reasons were that what he said to the Department was not credible and inconsistent. The Tribunal asked the applicant if he wished to change anything in his visa application. He stated it is true and he is satisfied with his claim.

25. The applicant confirmed his name and date of birth and confirmed he is a national of Pakistan. He has just turned [age]. He said his parents are alive and he has a [sibling] who is studying [a degree] in Islamabad. The applicant’s father is in [a certain occupation]. He has his own business and is also working for someone else. The applicant’s mother is a[occupation] . He has a first cousin in Australia however he lives by himself and he works as [a certain role].

26. He completed a [course] however he said that for a period of time his family members stopped supporting him financially. He last spoke to his parents a year and half ago. He has tried to speak to them indirectly through his [sibling].  He said that he told his [sibling] not to tell his parents that they speak. He claims he doesn’t want them to go against his [sibling] and it is also about honour and respect.

27. The Tribunal noted that the applicant had previously requested an Imam provide oral evidence at hearing however he was not available and he also asked for evidence from his psychiatrist but he said that needed more sessions with the applicant before a witness statement could be provided. The Tribunal noted that the applicant asked for another Imam from [a religious society in Australia] to be his witness. He confirmed that he has met him many times before he went to India and then on the IMAMs return but he has not seen him in one and a half years. The Tribunal asked the applicant to confirm how many times and he said maybe 10-15 times. He said the last time was 1-1.5 years ago. He said he attends a Shia Mosque and no Sunnis attend and that he has been attending since 2013. The applicant confirmed he visits the mosque but he does not live close so he participates when he can and that the Imam went to India for Ramadan. He said that Imam told him that he does not have to attend as he lives in [Suburb 1]. The applicant was asked why he attended there and not one in [Suburb 2]. He said he found it on the website. The Tribunal put to the applicant that it finds it highly unlikely that an Imam would state don’t come to the Mosque unless there is a major event because you live too far away. The applicant confirmed that the witness is there to support his claims that he attends a Shia mosque and is a practicing Shia. The Tribunal said to the applicant that it finds it difficult to accept that an Imam would tell the applicant not to attend the Mosque regularly. It also finds it difficult to accept that no festivals have occurred in the last year and a half which would enable the applicant to attend and see the Imam.  He said the area he lives they are Sunni – he selected a place further away. It is far from him. He said he did participate in every event but he would have to catch trains to get there and you can practice at home whenever you want.

28. The applicant confirmed he came to Australia to study. He is afraid of terrorist groups and family members and it is impossible to relocate and the current situation in Pakistan is so bad. He explained he was working with ISI against other terrorist groups and the main one is Taliban Pakistani and [splinter groups].

29. The Tribunal notes that ISI was established in 1948 - as Pakistan engaged India in the first war over Kashmir - to be the top body co-ordinating the intelligence functions of its army, air force and navy. In the 1950s, when Pakistan joined anti-communist alliances, its military services and the ISI received considerable Western support in training and equipment. The ISI's attention was focused on India, considered Pakistan's arch-enemy. But when Ayub Khan, the army commander-in-chief, mounted the first successful coup in 1958, the ISI's domestic political activities expanded. As a new state bringing together diverse ethnic groups within what some described as contrived borders, Pakistan faced separatist challenges - among Pashtuns, Balochis, Sindhis and Bengalis. Much of the country's early history was shaped by politicians seeking regional autonomy and the central civilian and military bureaucracies trying to consolidate national unity. The ISI not only mounted surveillance on parties and politicians, it often infiltrated, co-opted, cajoled or coerced them into supporting the army's centralising agenda[1].

    [1] sourced 16 October 2017

30. ISI is headquartered in Islamabad and works under a Director General, a serving Lieutenant General of the Pakistan Army. There are three Deputy Director Generals-designated DDG (Political), DDG (External) and DDG (General). The ISI is staffed mainly by personnel deputed from the police, para-military forces and some specialized units of the Army. There are over 25,000 active men on its staff. This figure does not include informants and assets. It is organized into six to eight divisions[2].

    [2] sourced 16 October 2017

1. He said he worked for ISI for 1.5 - 2 years. He confirmed he was paid but that he was not a formal worker and as such he was paid twice for the work he did and he received a bonus and they were happy with his work. Based on his information they were successful at finding people and they appreciated his work.

2. The Tribunal asked the applicant about his work. He said he wasn’t certain what people were TTP when he was sent to observe and report back on people. He was asked how he identified these people. He said he was sent to a Shia Mosque. The Tribunal asked the applicant how long his operation took him and how he operated. He was told if there are more than two people gathering you should report them as suspicious people.  He said he would sit on a motor bike or observe them walking around. The applicant was asked if he was the only person asked to undertake this specific task. He said he does not know.

3. The Tribunal asked the applicant whether he could photograph suspicious people and he said he couldn’t take photos with his phone. The Tribunal asked where the Mosque was and he said that it was [number] minutes from home. There was one more Shia mosque between his home and this one.

4. He explained that it was in the main city and [number] minute away from his home. He said he was told how to protect himself and reduce risks. The Tribunal expressed its concern that it seems strange to be given an operation to spy on Shias as a Sunni in such close proximity to his own area i.e. only [number] minutes and he is a Sunni. The applicant said that he undertook the work sporadically. Initially the first job was for a couple of weeks to a couple of months and after that there was an incident with another mosque and he spent a couple of months there. He said there were no fixed hours he had to work. He said when he was at Red Mosque if there was a lecture then 3-4 hours every day and 3-4 times a week and sometimes he did not visit. He said that the [Official 1] from the army guided him on what days to attend. 

5. The applicant was asked why he would be sent to Red Mosque when country research suggests that Red Mosque has many ISI people as it is a base for them. The applicant said that there were issues between [Country 1] and [Country 2] and ISI couldn’t operate freely. The main leader and scholar from this Mosque and his family were killed in July 2007. The applicant stated that he was involved after 2010.

6. The applicant was asked how he became involved in ISI. The Tribunal explained that it needed to understand with clarity how he was recruited to ISI and whilst he claims that he has made an oath of secrecy but the Tribunal must be able to make a finding and it explained he has little information on this. The applicant said that his friend introduced him to ISI. The applicant said his friend’s father (who wore a uniform) was working in the government sector and he wasn’t sure if he was involved as well because everyone takes an oath of secrecy. He said he was formally approached by the [Official 1] who was invited to the applicant’s friend’s house by his father. The applicant said he would go to his friend’s house each week. People were often visiting and sometime they would reveal things. Some were civilians and others were from the army. He said when they would sit together and talk about what they did. He said he observed this over a few months and he spoke to his friend and showed an interested in their work. He said he spoke to his friend saying he was interested in joining and then the [Official 1] contacted the applicant and asked him to come to [the military] camp.  He went by himself and he was met at the camp. He said that normal civilians couldn’t get access to the camp so he was given numbers to give to the guard who gave them to the [Official 1]. The representative of the [Official 1] gave the applicant a code to get into the camp. He explained that whilst he said the [Official 1] gave him the security code it was not directly and it was from someone who represented the [Official 1]. He was told that in the morning go and enter the camp and you will be allowed to enter with this code. He was there for 4-5 hours. He confirmed he had an induction. He confirmed that when he commenced work with ISI he was considered a civilian member of ISI. 

7. The applicant said he met with [Official 1] and a few others at the Camp. He said [Official 1] said they need information about the current situation and Shia mosques as they are under threat so they need details about who is going inside and who is giving a lecture and which people are coming and going. He confirmed that the [Official 1] didn’t ask about his religious status. He was aware of the fact he was a Sunni and the applicant’s friend was also Sunni. The applicant showed his identity card and they took a copy of it. The Tribunal asked the applicant how they paid him. He said he was offered a lump sum amount and they said any problems we can help you out.

8. He confirmed that he didn’t tell his family about his work with ISI. Prior to starting with ISI he was working as an [occupation] for his father’s friend. He left [this role] when he started with ISI. The applicant stated that it was just to gain experience. He was paid [amount] Pakistani Rupee twice which the Tribunal question was equivalent to [amount] Australian dollars. The applicant confirmed that this was correct.

9. He said he was told to just follow and find out information. The Tribunal asked the applicant how he was expected to keep in contact with the Camp and update them and he said he would have to go and see him and inform him. He said he reported to the [Official 1] after the Shia mosque work for a few months when the [Official 1] the told him to attend the Red Mosque because [Official 1] believed that the same people may be at the Red Mosque.  He claims he monitored the Red Mosque for a couple of months. He was given his payment after the Shia mosque. The Tribunal asked the applicant when he was paid and he said once in a week or once in a month or twice in a month. However, the applicant then said that after his work at the Red Mosque there was no other task.

10. The applicant was asked if he can explain why he will be identified as a member of ISI if he is to return. He said that a man called ‘[Mr A]’ was looking for him and went to his parents’ house but they told him they don’t have contact because he converted to Shia Muslim. He said he knows they want to kill him.  The applicant also said that the man looking for him was a security guard of [an] Islamic preacher.

11. The applicant said his parents want him to return to Pakistan and answer these questions however he does not want to. He said they are not happy with him because he has converted and because he doesn’t want to return home. He said that conversion is the main issue.

12. The Tribunal asked the applicant to clarify if there is any truth in his conversion.  The applicant stated that he has converted. He then confirmed he is a Sunni Muslim.  He said that he prays as a Sunni when he is with his friends who are Sunni however he prays as a Shia when he goes to the Shia Mosque. The Tribunal asked the applicant what he would follow if he was to return to Pakistan and he said that whilst in Australia he is a Sunni however he would be considered a Shia if he returned and would be killed. The Tribunal asked the applicant again what he would be if he returned to Pakistan. He said he has freedom in Australia he just wants to study Shia Islam and he wants to know more and after a couple of months he said he would decide. He said that returning to Pakistan is hard and it is hard to decide.

13. Following an adjournment, the applicant said there were other incidents that make him worried to return to Pakistan. He said that in April 2012 he was followed when he left the camp for a long distance. He was on a motor bike and he was followed by extremists in a jeep. They tried to kidnap him so he escaped down a narrow side street and managed to lose them. He said he was worried because they tried to cut him off by driving in front of him. It was night time and not many people where on the road.

14. The Tribunal put to the applicant that the course of events he has explained lacks logic. The Tribunal put to the applicant that given he did not know the men it seem convoluted to  be followed for a long period and then an attempt to run him off the road occurred.  If it was dark and no one was around, they could have taken the applicant before he got onto his bike or drove up next to him and asked him to pull over or shot at him.

15. The Tribunal put to the applicant that if they wanted to harm him they could have. The applicant responded by saying that he was followed down narrow streets so eventually they could not follow him. The Tribunal asked the applicant how he knows they wanted to kidnap him given the windows of the car were black and they never actually managed to catch him.  The Tribunal put to the applicant that perhaps they were simply travelling in the same direction and were aggressive drivers. The applicant responded that the road was not the type where someone would be aggressive and he felt they wanted him to fall off his bike so they could grab him or kidnap him.

16. The second incident occurred around May 2012 at 8.30-9.00pm returning from Camp to home. He was driving when a 4x4 car following him shot at his rear window and rear passenger window and his car ran into a pole. He said that they thought he was hit but he wasn’t. He said there were no other bullets other than through the windows.

17. The Tribunal asked the applicant why he stated there was two incidents however in his statement of claims he mentions there are four. The applicant responded by saying that these are the main ones and these cause him the greatest amount of concern. He said that he other incidents were based on assumptions. The Tribunal put to the applicant the incident where he claims he was identified by men around the Red Mosque. He acknowledged this and said it was not an attempted kidnapping.  He said that he was paid for conducting surveillance.

18. The Tribunal put to the applicant that in his statutory declaration which makes part of his protection visa application he wrote provided different dates and outlined 4 events regarding the kidnapping yet his evidence at hearing was different. He responded by saying that the exact dates are hard to remember because many years have passed away and he cannot focus on dates and days.

19. The Tribunal asked the applicant to list the 4 incidents he referred to in his submission. The applicant listed the incident on [a main road] was when he was on a bike and he was coming from camp and the [Town 1] incident was the second. The applicant did not provided further details. The Tribunal again put to the applicant that these events are different and the detail appears to be confused. The applicant stated that today at the hearing “are the real incidents”. He said that there were two events. One when he was on a bike and the other in a car. The applicant said he is on medication and suffers from anxiety and memory lapse and that this could be the issue. He said that he saw a psychiatrist for one and half years but he is not seeing them now and he is not taking the medicine any more. He said he saw the psychiatrist and so he stopped his medicine.

20. The Tribunal explained to the applicant that he was asked at the beginning of the hearing if he wished to amend anything in his application and he stated no. Now, he states there were only 2 kidnapping attempts yet the details are so different to those in his application and described in a different manner. If the medication made him confused, he had every opportunity to explain this at the beginning of the hearing. The Tribunal stated that it will give him time to provide an explanation as this is important in addressing his claims and in the Tribunal making a credibility finding. The applicant said that he just recalled two events and there is nothing else he remembers.

21. The applicant was asked if he attempted to report these incidents to the police and he said it was better not to report them because of his secret work. The Tribunal put country information to the applicant from DFAT Country Report, Pakistan which outlines that the police are generally responsive. The applicant said that he accepts country research however he said that he does not know if they will investigate concerns. The Tribunal put to the applicant that the country report states that ISI is part of the government and this would further contribute to his level of protection and the responsiveness of the police. The applicant said that even the Sri Lankan cricket team’s safety cannot be guaranteed and referred to a recent incident in Lahore.

22. The applicant said that his family have stopped supporting him financially and if they can do this then they could harm him too.  The Tribunal asked the applicant why he simply denied that he converted because as he has said, he hasn’t and as he said to the Tribunal he hasn’t been to a Shia mosque for 18 months.  The Tribunal put to the applicant that it has concerns regarding the substance of this claim as it lacks logic.

23. The Tribunal asked the applicant to explain who [Mr A] is and why he concerns the applicant. He said that [Mr A] told his family he had converted and they believed him. The applicant confirmed he did not deny this to his family. The Tribunal said it is illogical that he would not deny this if it causes his family and himself such distress. His parents insist he returns to Pakistan to explain. He said that because he has Shia friends it is easy for people to believe he converted. He said he had a problem with his work and now he is on a hit list for his work he can be targeted. The applicant said that his main reason for not wanting to return to Pakistan is that he is worried about a terrorist organisation and he faces a high risk of being harm. The Tribunal asked the applicant if he has any further details or any other concerns.

24. The Tribunal discussed with the applicant the general level of violence. He stated that there was a religious singer killed in Karachi and a model killed by her brother and no one is safe in Pakistan. He said that he had previously worked in an agency so he will not be safe. The Tribunal noted the DFAT Country Report on Pakistan 15 January 2016 which stated

    The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA, and varies depending on the location of Pakistan military operations. Urban centres also tend to be more secure than rural areas, with the exception of Karachi. This includes ‘cantonments,’ or secured areas, although militant groups have also specifically targeted these areas.

    Organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan. This is exacerbated by the proliferation of licenced and un-licenced small arms in Pakistan. According to the United Nations Office on Drugs and Crime, Pakistan’s homicide rate was the highest in South Asia in 2012 (7.7 per 100,000 people). While exact figures are not available, Operation Zarb-e-Azb , which has expanded to encompass paramilitary Ranger operations in Karachi, has substantially reduced the level of serious crime – including homicide – throughout Pakistan. 

25. The Tribunal asked the applicant why there was a delay in applying for a protection visa. He said it took 9 months because he ran out of money and had a visa to keep him onshore legally.

26. The applicant reiterated that conversion is the issue. He confirmed that he has not converted but he is interested in having the choice.  He said that he is studying and there is dialogue. His is not sure and it is a matter of time.

27. The Tribunal then telephoned the applicant’s witness. The witness is an [Imam] from [a religious society in Australia] and confirmed that he has known the applicant for two years. He said he has moved so he sees him rarely. He said when he did come he would see him fortnightly or monthly on special occasions. He confirmed he is a Shia Muslim. He was asked if the applicant converted and the witness said “I was told he did but God knows best”. He confirmed very few people convert from Sunni to Shia. He was asked what confirms the applicant is a Shia. The Imam said he would attend religious weekends and pray and attend special anniversaries. He said the prayers are different. He was asked what the process of converting requires and he said it is about research and study and meeting with a scholar however there is no specific way. One must commit and understand. It is about a personal journey and learning. The Tribunal asked if it is important to attend prayers often. The Imam said every attendance you receive leads to reward. It is very important that you visit every day if not once a week. The Tribunal put to the Imam that the applicant said he was told by him that he could just come for major festivals and his response was “Me, Me? Me no no Me Me?”.

28. The Tribunal notes inconsistencies between what the Imam said and what the applicant said. He was asked why the Imam thought he had converted when he had not. He said because he is known to him and that he is there and prays like him but he said that he never asked. He said there are questions in his mind but he never told the Imam he converted. He is curious about his faith and it is deemed a matter of life and death for a Sunni to convert to Shia. He said he was in a relationship with a Shia woman and thought it implicated him.

29. The Tribunal noted that the Imam spoke of conversion being a personal learning journey under an Imam and asked the applicant what he had done. He said he does his own research and he watches YouTube and goes to online sites. He said he can do this every day. He stated one is a site called ASNAA ASHRYA which he just types into his computer.

30. He confirmed he is not a member of any Facebook groups. He said he looks at a Facebook group called SK – Shia Killing on Facebook. The Tribunal looked at the site and noted it existed[3].

    [3] accessed 16 October 2017

31. The Tribunal asked the applicant to explain why he said the Imam told him he only had to attend major festivals when the Imam stated that he did not say this. Instead he said he should attend as often as possible and gave the example of daily but if not then weekly. The applicant responded by saying the Imam said it is a personal choice.

32. The applicant confirmed that he did not have mental health issues when he was in Pakistan but only since he has been in Australia following the problems. He expressed his concern about how he would survive in in Pakistan. He said he was on medication and seeking medical support but he provided no evidence to support these claims. The Tribunal expressed concern that the applicant had stated initially he wanted to have a psychiatrist provide evidence on his behalf however he was not prepared to be a witness because he had not seen him enough. The Tribunal explained the claims pertaining to mental health are not supported by any evidence and offered the applicant the opportunity to provide this after the hearing.

33. The Tribunal asked the applicant whether he was able to relocate to somewhere else in Pakistan where he would be safe. The Tribunal suggested Lahore as an option noting it is a large diverse city and the applicant could find employment and given the size and diversity of the population he could assimilate into the community and should he wish to practice as a Shia or a Sunni his background would not be known. He expressed concern that he would be targeted for” whatever reason”. He said “anyone against any sect that is against the extremists would be a target”. He concluded no one can protect him.

1. The Tribunal’s reiterated its credibility concerns to the applicant pertaining to his account of events as detailed through the hearing. The Tribunal reiterated its concerns regarding conflicting country information and the limited evidence pertaining to the applicant’s medical issues and offered the applicant an opportunity to provide any further information and responses including a medical report. The Tribunal also explained to the applicant that the dates he provided at hearing were different to the dates he had in his submission.

2. His representative was offered the opportunity to make any additional statements and she explained that the applicant’s descriptions of incidents are correct and possibly due to the long hearing he may not have been as accurate in his descriptions. She explained that her office typed the submission and may have made errors. As stated by agent could explain the errors. The Tribunal provided the applicant until 2 august 2016 to provide a submission and the hearing concluded.

3. On 9 August 2016 the applicant provided the Tribunal with a letter addressed to [a doctor] from [a] Consultant Psychiatrist. He mentioned he had provided a previous report on the applicant [in] August 2013. He assessed the applicant stating “his affect was predominantly dysphoric with periods of anxiety, especially pertaining to his immigration situation. The doctor reiterated the applicant’s fears and stated that he presents with severe Adjustment Disorder with anxiety symptoms and depressed mood”. The doctor stated that “it is clear that this is in the context of” the claims the applicant has made to the Tribunal. The doctor stated the applicant would benefit from psychological support and the treatment focus would be cognitive behaviour therapy.

4. On 17 January 2017 the applicant’s representative sent the Tribunal media articles to support the risk of the applicant relocating in Rawalpindi, Baluchistan in Pakistan.

   FINDINGS AND REASONS

5. On the bases of the evidence provide at hearing, I accept that the applicant is a Sunni male from Pakistan and that his family are practicing Sunni’s.

6. For the following reasons, the Tribunal finds that the applicant is not a credible witness and consequently with the reasons detailed below does not accept the applicant’s claims.

7. The applicant applied for a student visa [in] October 2012 in Pakistan and he applied for his protection visa [in] October 2013. The applicant’s student visa was granted [in] November 2012 and he arrived in Australia [in] January 2013. The protection application was made almost a year from when the applicant researched and submitted his student visa application and nine months from when he arrived in Australia.  Whilst the applicant stated he had a valid student visa he confirmed he came with the purpose of seeking protection. The Tribunal would expect that people who are so fearful of returning to their country would seek protection as quickly as possible. The applicant managed to obtain sufficient information about his student visa and as such he could have also sought information readily available on the internet about protection visas. The delay in applying for protection raises credibility concerns about the applicant and his claims.

8. The Tribunal does not accept that the applicant worked with ISI for 1-1.5 years because the applicant’s evidence pertaining to how he learnt about ISI, was invited to join ISI and was remunerated by ISI lacked sufficient detail, logic and consistency to find it plausible for the following reasons:

   ·The applicant’s oral evidence lacked plausibility. He claims he would go to his school friend’s house where many people would come and go to meet with his friend’s father. He claims he came to know that they were involved in ISI and he expressed his interest in being involved to his friend. He was unable to clarify if he knew whether his friend’s father worked for ISI. He said he knew he worked in Government and wore a uniform but said he did not know what he did. The Tribunal considers it illogical that someone would make approaches about working in such a highly sensitive area with limited evidence to support his hunch that it was ISI. Furthermore the description of people coming and going and speaking about security operations does not marry with the actions of legitimate members of an intelligence agency.

   ·The applicant said the [Official 1] asked him to join ISI at his friend’s house. He also said that he had never met the [Official 1] until he went to the camp and another man at his friend’s house asked him to go to the camp and meet the [Official 1].  Not until the Tribunal asked several times for clarity did the applicant provide a consistent explanation. This contradictory statements pertaining to how and when he met the [Official 1] further detracts from the credibility of the applicants claims.

   ·It is implausible that the applicant worked for ISI for 1 to 1.5 years to be paid twice at an equivalent of A$[amount] each time and never have discussed or negotiated remuneration. The credibility of this claim is further reduced by the applicant’s contradictory statements at another point in the hearing claiming first he was paid twice in the period and then he also said he was paid once in a week or once in a month or twice in a month. 

   ·The applicant’s descriptions of his circumstances prior to joining ISI are not credible and detract further from the overall claims. When the Tribunal asked the applicant what he told his father when he left the [role], he said it was just to gain experience. It is implausible that the applicant’s family never questioned why he left his [role] with his father’s friend or questioned what he did for 1 to 1.5 years.  

   ·The Tribunal finds it implausible that an employee or contract person asked to monitor suspicious people and report on them could possibly provide meaningful data or information simply on the bases of noting anyone who gathers in a group or looks suspicious. The applicant’s explanation of his brief and how he came to be recruited lacks sufficient detail and was contradictory in parts.

9. The Tribunal finds that the applicant is not a credible witness because he could not recall the same dates or events outlined in his application to those he gave the Tribunal during the hearing. In his submission he detailed four kidnapping attempts. The first being [in] November 2011 near [Town 1], the second [in] December 2011 near the Highway in Islamabad connecting Lahore, the third [in] December 2012 in Islamabad and the fourth near [the main road] on his way back on a motor bike from  [the] Camp. At hearing, the applicant provided different accounts. Firstly he said a man called [Mr A] (the security guard of [an] Islamic preacher) came to his parent’s home and told them he had converted to Shia Muslim. He did not claim this was a kidnapping attempt but he fears he is recognisable and that he will be killed and that now his family believe he is a Shia. The second event detailed at hearing was in April 2012 when he had an attempted kidnapping by men in a car and he was on a motorbike and he escaped down a narrow side street. The third event was around May 2012 when he was driving home and men in a 4x4 car shot at his rear windows. This is two kidnapping attempts and quite different in content and timing to the claims in his application. The Tribunal rejects the applicant’s response that others were ‘assumptions’ or that many years have passed and he cannot remember dates. The applicant’s medical reports provide no evidence to suggest he is unable to provide consistent information about four events. Whilst the Tribunal accepts that with the passage of time some details may be lost, it does not accept that the applicant cannot recall the details of four events and dates or even years in which these happened. The applicant’s contradictory and inconsistent claims lacked detail and plausibility.  The Tribunal has considered the applicant’s reasons for inconsistencies given in his submission to the Tribunal. The applicant had no obvious speech impediment during the hearing as referred to in his submissions and the Tribunal does not accept this would contribute to significantly different claims. His representative submitted he had physical and psychological trauma, the length of time since the events and language barriers and his hesitation detailing confidential information due to a mistrust of authorities as reasons why the applicant’s evidence could be different. The Tribunal rejects these explanations outright. There was no medical evidence to support the applicant being unable to provide consistent accounts of events due to any form of trauma. Furthermore the applicant provided accounts that were not the same accounts as those in his original application. The Tribunal notes that the representative at hearing stated that the dates were different but the accounts were the same when this was put to the applicant. This is incorrect as detailed above.  The Tribunal finds the applicant is not a credible witness and his claims are not credible and as such it does not accept that any of the four attempted kidnappings detailed in his protection visa application occurred or that the claims given at hearing about [Mr A] informing his parents he is a Shia or the two attempted kidnappings occurred.

10. The Tribunal does not accept that the applicant has converted to be a Shia Muslim or has any meaningful interest in converting to be a Shia Muslim. The applicant’s claims were contradictory and unconvincing for the following reasons. At hearing he said he had converted. After several attempts of the Tribunal trying to clarify with the applicant he said he has not converted but is interested in converting. To convert from Sunni to Shia is significant and the Tribunal would expect the applicant to be absolutely clear in where he is in regards to his conversion. The applicant said he is reading and still deciding and attends a Shia mosque. The Tribunal notes that the applicant made a statutory declaration detailing his claims for protection [in] October 2013 and in it he stated “I believe the Sunni faith to be the only and true faith”. However at hearing the applicant stated he has been attending the Shia mosque since 2013. As such, he would have had to have been attending in October, November or December 2013. He also said that he has not been to this mosque for 1-1.5 years and has been to this mosque 10-15 times in total. The Tribunal has considered his limited attendance at the Mosque and his lack of study which the Imam said was required of one who wanted to convert as evidence of his lack of genuineness in conversion. Furthermore the Tribunal would expect that the applicant would have increased his attendance over time and not decreased it.  The Tribunal finds that the applicant’s claims of converting and wanting to convert from Sunni to Shia lack credibility and the Tribunal does not accept this claim.

11. The applicant claimed that he risks harm as an imputed Shia due to his claimed ISI work, his friendship with Shias, his previous relationship with a Shia woman and his attendance at a Shia mosque in Australia. The Tribunal’s made a finding above and did not accept that the applicant worked for ISI as such there are no grounds to suggest the applicant could be imputed as a Shia due to ISI surveillance work. In considering the other reasons for why the applicant could be imputed the Tribunal has no evidence to the contrary and the Imam has provided evidence to support his attendance at a Shia mosque. The Tribunal accepts as plausible that he had a relationship with a Shia woman and has Shia friends and has attended a Shia mosque. In assessing whether the applicant will face harm of any type as an imputed Shia or an imputed converted Shia it gives significant weight to country information and consequently does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm as an imputed Shia or converted Shia from extremists, the government or the general community. 

    DFAT Country Information Report on Pakistan, 15 January 2016 estimated 95 per cent of Pakistanis identify as Muslim. Sunnis account for approximately 75 per cent of the population and Shias a further 20 per cent and that most Pakistanis are able to practice their religion freely, although opportunities for religious freedom are generally greater in large urban centres than rural areas. DFAT assesses that there is generally a low level of official discrimination in Pakistan on the basis of religion. However, there is a moderate level of societal discrimination, including in the form of nepotism within religious communities and the use of blasphemy laws.

    DFAT Thematic Report, Shias in Pakistan, 15 January 2016 outlines that 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. It states that 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.  

12. Whilst the Tribunal accepts that Sunnis make up a large percentage of the population in Pakistan and that it is rare for people to convert, the Tribunal has no evidence before it to support families targeting members who have converted from Sunni to Shia or who have been imputed as Shia. Whilst the Tribunal acknowledges that families may reject a member, there is nothing before the Tribunal to indicate that they would harm the applicant. He stated in his original application that he received threatening emails and texts however he provided no detail in regards to these and in the context of the Tribunal’s credibility findings it does not accept that he received threatening emails and texts from his family nor does it accept that they would try and harm him. Furthermore the tribunal is perplexed by the applicant stating that he never corrected his family when they accused him. There is no logic to this and the applicant provided no explanation as to why he would not defend himself to his family. This unusual decision further contributes to the tribunals concerns pertaining to the credibility of the applicant and his claims. He could simply deny these claims and he did not. The Tribunal does not accept the applicant would face any harm as an imputed converted Shia from his family.

13. The submission listed the applicant’s “speech impediment and English ability as a cause of him mumbling, answering incoherently and inaccurately” when being interviewed by the delegate. The submission listed the applicant’s speech impediment, physical and psychological trauma, length of time between the event and interview, applicant’s ability to describe past events, language interpretation and hesitation in providing the migration agent with confidential information due to a mistrust of authorities as possible reasons why his claims were not consistent. There is no evidence to support these “possible reasons” and given the Tribunal’s credibility findings it places no weight on these explanations.

14. The Tribunal has considered the email from [Official 1] and places no weight on this evidence. The email gave no detail about the events such as dates or details of the attempted kidnapping and when the Tribunal put to the applicant its concerns about his claims in his application differencing from his claims at hearing he was unable to provide a plausible explanation. The Tribunal has considered the email which was not on official letterhead and whilst the applicant has detailed the need for ISI agents to be undercover, it is illogical that one would agree to provide a letter of support from a private account and not an official account because it would still expose his identity.

15. The Tribunal has considered the applicant’s medical assessment in the context of returning to Pakistan. The report details what the applicant has reported – namely impaired attention, memory and concentration and a summary of his claims. The doctor has assessed the applicant as presenting with a severe adjustment disorder with anxiety symptoms and depressed mood in the context of his claims. The recommendation is that he would benefit from cognitive behaviour therapy. The Tribunal has considered the DFAT Country Report and finds that the applicant would have access to health care to the same degree that other Pakistani’s do and would not be prevented from accessing it. The report does not confirm that the applicant’s evidence or ability to deliver evidence would be impacted in any way due to his mental health.

    Health care in Pakistan is generally free and accessible to all Pakistanis. However, the health care system suffers from a lack of funding and limited capacity. Health care services vary between urban and rural areas because of difficulties associated with access and infrastructure in remote locations. Although private health care providers generally provide better quality health services, access to these services is limited by their higher costs.

16. The Tribunal has considered the media reports submitted by the applicant that IS still has a presence in Pakistan, that high profile extremists have been kidnapped, that mental health medication runs out, that there have been targeted attacks on ISI and media reports on extremist activity.  In the context of the credibility findings made by the Tribunal, the Tribunal does not accept that the applicant has a profile which would make him a target. In the context of medication, the Tribunal notes that the medical report does not state that the applicant requires medication. The articles have been considered however the tribunal finds they are not relevant to the applicant.

17. The tribunal notes that Pakistan has a high level of violence under which its citizens live. There is nothing before the Tribunal to indicate that the applicant would have any greater propensity to be harmed than any other person in the community.

18. As stated above, the Tribunal finds that the applicant is not a credible witness in regards to his claims that he worked for ISI. It rejects his claims that extremists have ever tried to kidnap him or that his family have been informed by a security guard that he has converted to be a Shia. It accepts as plausible that the applicant whilst still a Sunni could be imputed as a Shia however it relies on country information and rejects that the applicant would suffer persecution or any harm in Pakistan as a result of this.  The Tribunal finds that the applicant does not fear returning to Pakistan for any reasons.

19. In summary, in relation to the refugee criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason or for any of the reasons claimed, or for any other reasons.

20. In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the reasons claimed, or for any other reasons.

    CONCLUDING PARAGRAPHS

21. 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).

1. 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).

2. 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

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

   Rachel Westaway
   Member