1421056 (Refugee)

[2016] AATA 4280

1421056 (Refugee) [2016] AATA 4280 (8 August 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421056

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Roslyn Smidt

DATE:8 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2016 at 11:32am

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

3.    The applicant appeared before the Tribunal on 28 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

THE RELEVANT LAW

4. 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.

5.    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).

6.    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.

7.    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’).

8.    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS AND EVIDENCE

1. The applicant is a [age]-year-old married man of Shia Muslim religion from [City 1] in the Punjab region of the Pakistan. 

2. The applicant was granted a [temporary] visa for Australia [in] April 2013 and arrived [in] September 2013. He applied for a protection visa [in] October 2013, but this application was deemed invalid. He applied again [in] November 2013.

   Protection visa application

3. The applicant stated that he was unmarried and had been unemployed since he completed high school in [year].

4. In an accompanying statement he said that he belonged to the minority Shia Hazara sect of Islam. He said that many of his neighbours were killed when a bomber attacked the Shia mosque during Ashura. Following this he addressed a rally outside the [City 1] [venue] which was attended by thousands of Shia. They shouted anti-Taleban and extremist slogans and also anti-government slogans. The applicant was arrested at the rally and taken blindfolded to an unknown place where he was brutally tortured. He was released after his family bribed a police informer.

5. After his release from custody the applicant became a local leader of the Shia political organisation Tehrik E Nifaz e Fiqh Jaffaria (TNFJ). He also pursued his Shia religious activities. He canvassed school to school house-to-house and distributed leaflets. He also organise meetings among the Shia youth. The radical group Sipah-e-Sahaba, which is an extremist group affiliated with the Taleban, accused him of being funded by the Iranian state and issued a fatwa saying that killing the applicant would be justified because he was an infidel.

6. The applicant was attacked by Sipah-e-Sahaba at his local mosque while offering prayers. Fortunately the bomb they threw at the mosque did not explode.

7. The applicant was very vocal against the local government for failing to protect Shia community people in the area. The local police warned him against criticising their role which was to favour Sipah-e-Sahaba.

8. The applicant said that he had been outspoken against the Taliban and Sipah-e-Sahaba and he would be killed if he returned to Pakistan.

9. The applicant said that many innocent Shia were killed in bomb blasts and targeted attacks. The authorities provided no protection and he had lost many family members in the decade before he left Pakistan as a result of sectarian violence.  He said that the authorities provided no protection for Shia.

   Department of Immigration interview

10. The applicant was interviewed by a delegate of the Minister of immigration [in] May 2014. At the beginning of the interview he provided a written statement which is almost identical to the statement set out above.

11. According to the delegate’s decision the applicant said that his ethnicity was [Ethnicity 1]. When asked why he had previously claimed to be Hazara he said it was because he is a Shia and all Shias hold the same beliefs.

12. The applicant said that he was married and had [children] and that from 2008 to 2013 he owned and operated a [production] business in [City 1] which employed [number] people.  When asked why he had provided different information in his application he said that a friend had helped him to prepare his application and it contains some errors.

13. The applicant said that he had participated in a peaceful rally in November or December 2012 following the killing of many Shia in Pakistan.

14. The applicant was asked about the bombing of a mosque mentioned in his written statement. He said the bombing had occurred in October 2004 and he was outside the mosque at the time. Following the bombing he organised and addressed a rally to protest the bombing and demand rights for Shias. The delegate noted that this appeared to be a new claim and also observed that he would have been only [age] at the time, which seemed young to be in charge of the event. The applicant said that he had photographs which he would provide later. No photographs have been provided.

15. The applicant said that the rally was attacked by LeJ and Sipah-e-Sahaba and he was injured. A few days later the same people attacked his house. The applicant said that he was not arrested or blindfolded or tortured following this attack as claimed in his statement. When the delegate pointed out that he had made this claim in his written submission the applicant said that his English was not very good.  He said that he had not been arrested but rather he had been given police protection.

16. When asked about his membership of the TNFJ, the applicant said that he had been the [position holder] of the [particular] wing of the group in [City 1] and had been responsible for [specific tasks].  He said that all the members of his family belonged to the group because they were Shia.  The delegate noted that he had no documentary evidence to support this claim. The applicant said that he would provide a certificate.

17. When asked about the claim that he had been attacked at a Mosque by Sipah-e-Sahaba the applicant said that this had not occurred, but an extremist group had fired shots at his home in December 2012 when he was not there.  He said that he had attended a peaceful rally in about November or December 2012 protesting the killing of Shia Moslems across Pakistan.  The rally was attacked and he was injured. One afternoon in December 2012 about [number] people from LeJ or Sipah-e-Sahaba came to his house when he was not at home. They told his father that a fatwa was issued against all Shia and called the applicant an infidel who should be killed but said he could save himself if he converted to Sunni Islam. He reported the incident to the police. The delegate noted that this claim had not been included in his earlier statement. The applicant said the statement had been prepared by a friend because this English was not very good.

18. Following the attack on his home the applicant received many threatening telephone calls. The callers said he would be killed if he did not leave Shia Islam and become a Sunni.

19. The applicant said that he could not return home because his name was on a LeJ list and he would be killed. He said that he had applied for protection in Australia because he had no protection in Pakistan.

20. Following the interview the applicant provided a copy of a letter from Tehrik E Nifaz E Fiqh Jaffaria Pakistan District [City 1] which states that the applicant had joined the organisation [in] January 2008 and remained a member until [August] 2013. It states that he had worked for the welfare of the Shia community by holding and organising religious gatherings and protesting against the killing of Shia in Pakistan and that he was one of the few Shia who speak out for the rights of minorities.  It states that he was attacked several times and his family is on a hit list.

21. The applicant also provided a copy of a report he made to the police [in] December 2012. It speaks about general problems faced by Shia and the applicant’s involvement with and arrangement of protest activities in November /December 2012. It states that he was attacked and injured by unknown people in late November 2012 and a few days later, [in] December 2012, shots were fired at his house.  It also states that he had received threatening calls from Sunnis telling him he must convert.

    Tribunal hearing

22. The applicant confirmed that his claims related to his Shia religion and specifically to his support of fellow Shia and his opposition to those who attack or discriminate against Shia. He confirmed that he had not experienced any serious problems in areas such as education, earning a livelihood or obtaining services because of his religion.

23. I noted that in written statements provided to the Department of immigration the applicant had claimed that he was unemployed, unmarried and of Hazara ethnicity, none of which appear to be true, and asked him why he had made these claims. The applicant said he had have never been employed by anyone else and said that he was Hazara. I noted that he had told the delegate that he was [Ethnicity 1] and observed that he did not appear to be Hazara. He said that his grandparents had come from [location] but [his] family became linked to or associated with Shia Hazara and that he was of [Ethnicity 1] but he belonged to the religion of Shia Hazara.

24. I advised the applicant that it was my understanding that Shia Islam was a religion while Hazaras were an ethnic group and, while most Hazaras were Shia, not all Shia were Hazara. The applicant said that they all believe the same thing and all belong to the same group. He added that all the leaders of the Shia community in Pakistan were Hazara.  I advised him that it was not my understanding that most Shia leaders were Hazara and that it was my understanding that Hazara often faced more problems than other Shia in Pakistan and suggested that perhaps that was why he had described himself as Hazara. He said that this was not correct.

25. The applicant confirmed that he had been near a Mosque which was bombed in 2004 and that the attack had not targeted him. I asked him to tell me about the problems he had experienced in 2004.  He said that he had not faced any problems at that time.  I noted that in his written statement he had claimed that he was arrested and tortured after participating in a rally following the bombing and he later told the delegate that he was beaten during the rally and his house was later attacked and observed that he now appeared to be giving me yet another account of events.  He said that in 2004 he had been young and had not known what to do following the bombing. He said that the attack on the rally and his home had occurred in 2012, not 2004, and that he had not been arrested at any time but had been given police protection.  He said that he had explained this to the delegate, but the delegate keep asking him questions about his age.

26. When asked, the applicant confirmed that he had not experienced any significant problems in Pakistan until 2012.

27. I asked the applicant about his membership of the TNFJ. He said that he had joined the group in 2008 and that his activities included providing [specific] assistance to the group. He said that he was a [position] for people of his age and confirmed that this was a formal position within the group. I noted that this was not mentioned in the letter he had provided. He said that such letters only gave the name of the [position] and everyone else was referred to as members. 

28. I asked the applicant if he had been involved in any other activities as a member of the group. He said that once a month all the Shias in [City 1] would come together in a procession to discuss their religion and make decisions.  He said that he had attended these processions most months between [specific year] and 2012. I advised him that it was not my understanding that all Shia were members of the TNFJ. He said that most of the Shia in [City 1] belonged to the group.

29. I asked again if the applicant had been involved in any other activities as a member of TNFJ. He said that he had not. I noted that he had previously spoken about [an awareness campaign], but it appeared that these claims were not correct.  He said that he had been involved in these activities once a year.

30. I asked the applicant to tell me what he knew about TNFJ. He said it was a purely religious organisation. I advised him that it was my understanding that it was a political party. He said that this was not the case in [City 1].  I asked if he knew anything about the history or agenda of the group. He said that the leader of the group was called Rizvi and the head office was in Rawalpindi. When asked for more information he said that it was a big group with a long history and it had faced political problems in the past.  He was unable to provide any further information.

31. The applicant said that in November or December 2012 he attended a Shia rally calling for justice for Shia which was attacked by people with sticks. He said that the attackers were ordinary citizens. He was injured during the attack and needed [stitches]. The police were called and came, but the attackers had run away. The police said that they would look into the matter.

32. A few days later [number] men came to the applicant’s home while he was out and fired shots at the house. They said that they belonged to Ahl-e-Sunnat. When asked if the group had any other name he said that it was also called LeJ or the Taliban. I noted that he had previously stated that the attack was carried out by Sipah-e-Sahaba and he appeared to be providing a different account of this event. The applicant said that they were all Sunni and all the same.

33. The applicant said that he had been out when the attack occurred but his father telephoned and told him what had happened.  He said that the men had demanded that the applicant convert from Shia to Sunni Islam.  Following this the applicant and his father made a report to the police, who said that they would provide what assistance they could.

34. I asked the applicant to confirm that he had not experience any problems before the events of December 2012. He said that there had not been many problems before then. I observed that that appeared to suggest that there had been some problems and asked him to tell me about these problems. He said that there had not been any problems.  I asked if he had received any threats. He said that he had not.

35. I asked that applicant what had happened after the attack on his house. He said that he had begun to receive threatening telephone calls. I noted that the police report was dated [December] 2012 and that it stated that his house and been attacked [in] December 2012, but also stated that he had been receiving threatening telephone calls, which appeared to be at odds with his evidence.  The applicant said he had received some threatening calls between the rally and the attack on his home, but they got worse following the attack.

36. The applicant said that after the attack on his home in December 2012 he constantly received threatening telephone calls demanding that he change his religion, so he moved to [Town 1] which was located about [number] kilometres or a [number] minute drive away. His [production business] was located in [Town 1]. The threatening calls continued, even when he changed his number.  He reported the calls to the police and they said that they would investigate, but the numbers he provided were no longer in service when they tried to call.

37. I asked the applicant if he knew of any other Shia who had received similar calls. He said that he did not.  I asked if he knew why he had been singled out for this treatment. He said that he believed it was because he was active and a prominent member of the community. I observed that his evidence did not appear to suggest that this was the case.

38. I noted that the written statement provided by the applicant when he first applied for protection stated that a fatwa had been issued stating that he should be killed. I observed that he had not repeated this claim and asked if it was another error in the statement. The applicant said that the people who attacked his home and made threatening calls had said that he should be killed because he is a Shia, but nobody had actually mentioned a fatwa against him.

39. I noted that the claim in the applicant’s first statement that he was attacked while praying at a Mosque had not been repeated in later submissions. The applicant said that he had been referring to the 2004 bombing. I observed that there were significant differences between these claims. The claim in his written statement suggested that he was targeted and that the bomb had not exploded while he had told me that he was not the target and the bomb had exploded.  The applicant said that perhaps the person who assisted him to prepare this statement had misunderstood his claims.

40. I noted that the applicant had claimed in his written statement that he had been vocal in criticising local government and the local police, but he had not mentioned this during the hearing. The applicant said that he and others criticised the government and the police during processions. I observed that he did not appear to have experienced any problems because of this and noted that the police appeared to have been helpful and protective whenever he sought their assistance. The applicant agreed that he had not experienced any problems because he criticised the local authorities, but said that the police had never really been helpful, despite saying they would be.

1. When asked, the applicant confirmed that nobody in his family had experienced any significant problems before 2012. I observed his written statement included the claim that many members of this family had been killed and asked if this was a mistake. The applicant said that he had been referring to the many Shia who had been killed and added that one of his [relatives] was killed when a mosque was bombed in 2004. When asked why he had not mentioned this previously he said that he had not been asked.

2. Later in the hearing I asked the applicant whether he had experienced any other problems before he left Pakistan. He said that his [production business]had been attacked twice: at about the same time as his house was attacked and in March or April. On the first occasion some people came at night and created a disturbance. On the second occasion they broke in, damaged things, tied up the four workers who were sleeping there and stole his check book. These events were reported to the police who investigated and said that they would be returning to check on the premises and to let them know if there was another problem. I observed that these attacks could have been carried out by common thieves. The applicant said that the day after the latter attack he received a telephone call from someone who claimed responsibility for the attack and said that when the group found him they would kill him.

3. The applicant said that threatening calls had continued after he left Pakistan. He said that he had not intended to remain in Australia, but when his father told him about the calls he had decided it was too dangerous for him to return.  He said that he had a good business and he had been living a good life in Pakistan before the December attack and he had intended to return to his family before he learned that he was still being threatened. He also said that he had not been aware of the possibility of applying for protection in Australia when he arrived. He also would have applied for protection when he first arrived in Australia if he had not intended to return home.

4. I advised the applicant that I found it difficult to accept that he had not been aware of the possibility of seeking international protection particularly as Pakistan had a large number of refugees. I noted that he had stated in his written statement that he had left Pakistan in desperation, which suggested he had wanted to seek protection. I also noted that he had obtained a visa for the United Kingdom on 4 April 2012 which was valid until April 2014 and he could have used the visa to flee if he feared for his life. The applicant said that he had applied for the visa for Australia before he experienced problems in Pakistan.

5. The applicant said that he had sold his [production business] before he left Pakistan. I observed that this appeared to suggest that he did not intend to return to Pakistan. He said that it had been his intention to return to Pakistan and set up in another part of the country. I asked him why he had not done this as it appeared that he would have had the resources to relocate to an area where he would not have faced the problems he was experiencing in his local area. The applicant said that he had continued to receive threatening calls when he relocated to [Town 1]. I observed that [Town 1] was not far from his home and he had operated a [production business] there for some time and it appeared likely that this would have been known to anyone who wished to harm him, but the same would not be true if he moved to another area. The applicant said that he had been warned by telephone that the people who were targeting him had links all over the country and would find him no matter where he went.

6. I advised the applicant that it was my understanding that, while Shia Muslims were sometimes victims of violence in Pakistan, DFAT advice indicated that levels of generalised and sectarian violence remain lower in Punjab than other parts of Pakistan. The applicant maintained that his claims were true and he was at risk of serious harm if he returned to his homeland.

   Country information

7. The following overview is intended to provide a context for assessing the applicant’s claims. Unless otherwise stated it is based on DFAT Country Information Report Pakistan and DFAT Thematic Report Shias in Pakistan, both dated 15 January 2016.

   Religious freedom and sectarian violence

8. Pakistan’s Constitution provides that ‘subject to law, public order, and morality, every citizen shall have the right to profess, practice, and propagate his religion’ but also establishes Islam as the state religion and requires all laws to conform to Islamic principles. With the exception of Pakistan’s Ahmadi community, most Pakistanis are able to practice their religion freely.

9. There have been numerous incidents of religious, sectarian and communal violence in Pakistan. In some cases, this violence is mutual, with different religious groups acting as belligerents. However, DFAT assesses that minority groups are disproportionately affected by sectarian violence in Pakistan.

10. Sectarian attacks in Pakistan have historically targeted individuals, places of worship, shrines and religious schools. Although this violence has affected all religious and sectarian groups, Shias Muslims represent a higher proportion of those attacked and killed. The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. Urban centres also tend to be more secure than rural areas with the exception of Karachi.

    Extremist groups

11. Pakistan continues to face security threats from terrorist, militant and sectarian groups. The most potent militant group in Pakistan is the Tehreek-e Taliban Pakistan (TTP), a loose network of Sunni militant groups. Although ideologically aligned with the Afghan Taliban, it maintains a distinct identity.

12. The LeJ is the main perpetrator of anti-Shia violence in Pakistan. The LeJ aims to establish an Islamist Sunni state in Pakistan and have Shias declared ‘non-believers’. The LeJ has claimed responsibility for a large number of attacks upon the Shia community, particularly Hazaras in Quetta and other Shia groups in the Federally Administered Tribal Areas (FATA) and Karachi. Pakistan designated the LeJ as a terrorist organisation in 2001. While CRSS notes that LeJ did not claim responsibility for any attacks between June 2014 and September 2015, credible sources have told DFAT the LeJ remains intact and has sleeper cells in major urban centres across Pakistan.

13. An assertive counter-terrorism military operation Zarb-e-Azb which was launched in June 2014 has substantially reduced the level of generalised and sectarian violence throughout the country. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks between September 2014 and September 2015 as groups such as the TTP have been divided and disrupted. However some observers believe that the groups are simply keeping a low profile.

    Shia Muslims

14. Pakistan is ethnically and linguistically diverse. Approximately 95 per cent of Pakistan’s population of 190 million is Muslim. Seventy five per cent of Pakistan’s Muslims identify as Sunni and 20 per cent as Shia [around 36 million]. Shias are represented across most of Pakistan’s ethnic, linguistic and tribal groups.

15. DFAT assesses there are no barriers preventing Shias from participating in democratic processes. Shias are well represented in parliament. Shias have historically supported mainstream parties, some of which have prominent Shia leaders. There is less support for sectarian political parties.

16. Shias are well-represented among high-level professionals in Pakistan such as doctors and lawyers. DFAT assesses that Shias do not suffer greater economic disadvantage than other groups in Pakistan.

17. Shias continue to face a threat from anti-Shia and militant groups, particularly Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) or Ahl-e-Sunnat Wal Jammat (ASWJ). Most of these networks have broad agendas, which include strong anti-Shia sentiments. Various Pakistani Taliban groups operating under the banner of the Tehreek-e Taliban Pakistan (TTP) have also claimed responsibility for attacks on Shias.  Pakistani authorities have increasingly scrutinised the activities of these groups. Although this has resulted in the arrest of prominent militant leaders and activists, capacity constraints have limited the effectiveness of subsequent prosecutions.

18. According to the Pakistan Institute of Peace Studies, there were only three acts of communal sectarian (i.e. Shia-Sunni) violence in 2014 resulting in two deaths.

    Hazaras

19. Hazaras are a predominantly Shia ethnic group, mostly of the Twelver Sect. There are up to 900,000 Hazaras in Pakistan. Approximately 700,000 Hazaras live in and around Quetta. Hazaras may be physically distinguishable from other Shia groups because of their Eurasian origins.

20. The Hazara Democratic Party (HDP) has historically represented the interests of Hazaras in Pakistan.

    Tehreek-e-Nifaz-e-Fiqh-e-Jafaria-Moosavi (TNFJ).

21. According to DFAT the Government of Pakistan has banned a number of militant groups including the Tehreek-e-Jafaria (TJP) and Tehreek-e-Nifaz-e-Fiqh-e-Jafaria-Moosavi (TNFJ). However, according to a 2011 International Crisis Group report Islamic Parties in Pakistan cited in Refugee Documentation Centre Ireland report (Pakistan – Researched and compiled by the Refugee Documentation Centre of Ireland on 13 January 2014) “Tehreek-e-Nifaz-e-Fiqh-e-Jafaria-Moosavi is a religious political party which avoids electoral politics and confrontation with Shias. The party’s main purpose is to lobby the government for increased protection of Shia rights. The party has been victim of sectarian attacks with some leaders being assassinated in Dera Ismail Khan in 2007 and in Peshawar in August 2008.”

    Relocation

22. Because of Pakistan’s size and diversity, there are viable relocation options for members of most ethnic and religious minorities: internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from non-state instigated discrimination or violence. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Findings of fact

23. For the following reasons I did not find the applicant to be a truthful or a credible witness.

24. In his initial application the applicant claimed to be Hazara. During his interview with the delegate it was established that he was ethnically [Ethnicity 1]. At the hearing he first told me that he was Hazara, then said that he was [Ethnicity 1] but belonged to or was somehow linked to the Hazara Shia group, which he described as a religious group. As pointed out at the hearing, Hazara are an ethnic group while Shia Islam is a religious sect. While most Hazaras are Shia, not all Shia are Hazaras. As noted above, Hazaras form a small minority of the 36 million Shias in Pakistan and the vast majority of them live in Quetta in Baluchistan, not in Punjab where the applicant resided. The applicant is clearly not Hazara and there is no credible evidence before me which suggests that he was linked to Hazaras in any way apart from their shared adherence to Shia Islam. I can think of no benign reason why the applicant would claim to be Hazara. I believe that he made this claim because he believed, as Hazaras are more at risk of violence that other Shias in Pakistan, he would be more likely to obtain protection in Australia if he claimed to be Hazara.

25. There are numerous significant contradictions in the applicant’s written and oral submissions to the Department of Immigration and the Tribunal. Most significantly, in the written statement provided with his application he said that he had attended a rally following the bombing of a mosque and claimed that he had been arrested at the rally and tortured before being released when his family paid a bribe. He told the delegate that he had been nearby when a mosque was bombed in 2004 and that he had organised a rally following this event. He said that he had been attacked during the rally and that his home had been attacked shortly afterwards. He also said that he attended a rally in 2012 and that his home was also attacked following this. At the hearing he told me that he had been nearby when a mosque was bombed in 2004 but had not been involved in any protests or harmed in any way following this event.

26. The applicant said that the difference between the claims contained in his written statement and later claims occurred because he does not speak English well and the friend who assisted him to prepare this statement made mistakes. I do not accept this explanation. While it may be that an inexperienced and unqualified person would make some mistakes, I do not accept that anyone would have understood and recorded that the applicant had been arrested, blindfolded and tortured when he was beaten during a rally and later provided with police protection. More significantly, the applicant is an educated man who ran a successful business in Pakistan. I do not believe he would have failed to ensure that the statement which was central to his attempt to obtain protection in Australia correctly set out his claims.

27. The applicant claimed that the difference between the evidence provided during his interview with the delegate and the claims made at the hearing arose because the delegate misunderstood when he was attacked at a rally and when his home was attacked. There does appear to have been some confusion during the applicant’s interview with the delegate regarding the timing of these events. However, I note that when the delegate observed that the applicant would have been only 20 when he arranged and spoke at a rally in 2004, as suggested by his earlier evidence, he did not disagree and explain that the delegate misunderstood the time of this event. 

28. In any event, even if I accept that the applicant was misunderstood during the interview and was attempting to explain that he had attended only one rally which was attacked and that this occurred in December 2012 this is not the only problem with his evidence. In addition to the problems set out above, as set out below the applicant changed other parts of his evidence and I found other claims unpersuasive or implausible

29. In his written statement the applicant claimed that Sipah-e-Sahaba had issued a fatwa calling for him to be killed.  He told the delegate that the group had issued a fatwa calling for all Shia to be killed. When asked about this at the hearing he said that while nobody had mentioned a fatwa, the people who attacked his house and made threatening calls said he was an infidel and should be killed.

30. In his written statement the applicant claimed that Sipah-e-Sahaba had attacked him at his local mosque when he was praying but the attempt failed because the bomb did not explode.  When asked about this by the delegate he said that he had been attacked at his home, not at the mosque. At the hearing he told me that he had been referring to the 2004 bombing of a mosque when he was in the area.

31. In his written statement the applicant claimed that he had criticised the local authorities and police for favouring Sipah-e-Sahaba and failing to protect Shias. When I pointed out this was at odds with his evidence to me and the delegate, which suggested that the police had provided him with assistance and protection, the applicant said that they had not done much to assist him. There is no credible evidence before me which suggests that the local authorities refused to protect the applicant because of his religion or for any other reason.

32. In his written statement the applicant claimed that he had lost many family members to sectarian violence in the decade before he left Pakistan. He did not mention this claim again until I reminded him of it at the hearing when he claimed that one of his [relatives] had died in the 2004 bomb blast at a mosque. It is clear that the applicant did not lose many family members to sectarian violence prior to departing Pakistan. Furthermore, if the applicant’s [relative] had died in the 2004 bomb blast I believe he would have mentioned this in his written statement or during his interview with the delegate. In any event, the 2004 bombing was an isolated event and there is nothing in the evidence before me which suggests it would have any impact on the applicant’s treatment if he returned to Pakistan.

33. The applicant claimed for the first time at the hearing that his [production business] had been attacked by men who later telephoned and indicated that they were responsible and were looking for him to kill him. If this had occurred I have no doubt that the applicant would have mentioned it in his earlier submissions. I do not accept that this attack occurred.

34. I found the applicant’s evidence regarding his membership of the TNFJ vague and unconvincing and I do not accept that he belonged to the group.

35. According to his written statement he joined the group some time after participating in a rally in support of Shias and was involved in [specific] [activities]., but, despite being asked a number of times if he had been involved in other activities, he failed to mention the activities set out in his written statement until I reminded him of them.

36. When asked about the group at the hearing he said that it was a religious group based in Rawalpindi and named the person who signed his letter of support as leader, but he was unable to provide any information about the group or its agenda. While I acknowledge that members of political or religious groups are often not well informed about the group to which they belong, if the applicant had been an active, prominent member who held a leadership position in the group I believe he would have been able to provide a better description of the group and its aims.

37. In addition, the applicant claimed that most or all Shias in [City 1] were members of the TNFJ and attended its monthly rallies. This is at odds with the advice from DFAT which indicates that most Shia support mainstream parties, not sectarian groups like TNFJ.

38. In reaching this conclusion I have considered the letter of support which the applicant provided following his interview with the delegate. However, the letter contains information which is at odds with the applicant’s evidence. It fails to mention that he held a leadership position in the group. It states that he is one of the few Shia to speak out for the rights of minorities, which is at odds with the applicant’s claim that all Shia in [City 1] belonged to the TNFJ and participated in monthly processions protesting their treatment. It states that the applicant was attacked several times, while according to his evidence he was attacked only once. It states that his family is on a hit list, while he claims that he was the only one targeted by extremists.  There is nothing in this letter which alters my finding that the applicant was not a member of the TNFJ.

39. I find the claim that the applicant was singled out by extremists following a TNFJ rally in December 2012 and repeatedly threatened with death if he did not convert to Sunni Islam implausible. While it is true that some extremist Sunni groups target Shias because they are viewed as non-believers and that prominent Shia leaders have been targeted by extremists, there is no credible evidence before me which suggests that the applicant was a prominent or active supporter of Shia rights or that he was outspoken in his criticism of extremists and I find the claim that he was the only Shia in his family or area who was targeted in this way to be implausible.

40. 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 is of Hazara ethnicity or that he belongs to a religion called Shia Hazara, I do not accept that he was a member of TNFJ, I do not accept that he participated in numerous processions criticising local authorities and calling for Shias to be protected between [specific year] and 2013, I do not accept that he was accused of being funded by the Iranian state, I do not accept that he was beaten and injured during a demonstration in 2012 or at any other time, I do not accept that extremists fired shots at his home or broke into his [production business] and tied up his employees, I do not accept that he was threatened by extremists who came to his home or contacted him be telephone before he left Pakistan or while he has been residing in Australia and I do not accept that a fatwa of any kind was issued which named him or suggested he should be killed or that his name is on an LeJ list.  I believe that all of these claims were concocted by the applicant to support his claim for protection.

    Findings in relation to s.36(2)a (Refugee Status)

1. There is no credible evidence before me which suggests that the applicant fears serious harm or that there is a real chance that he would suffer serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future if he returns to Pakistan. Therefore I do not accept that he has a well-founded fear of persecution for a Convention reason.  I am not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he therefore does not satisfy the criteria set out in s.36(2)a. Consideration of the applicant’s claims under S.36(2)(aa) (Complementary protection).

   Findings in relation to s.36(2)(aa) (Complementary protection)

2. There is no credible evidence before me which suggests that the applicant fears significant harm if he returns to Pakistan. I am not satisfied 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 he will suffer significant harm.

   CONCLUDING PARAGRAPHS

3. 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).

4. 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).

5. 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

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

   Roslyn Smidt

   
   

   Member