1421111 (Refugee)

1421111 (Refugee) [2017] AATA 1830 (10 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1421111
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Rachel Westaway
DATE:10 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 10 October 2017 at 6:32pm
CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Shia Muslim – Social group – Shia educator – Credibility Issues
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
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

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).
The applicant who claims to be a citizen of Pakistan applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] November 2014.
The applicant appeared before the Tribunal on 15 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 applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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
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'.
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.
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.
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.
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)
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born in [year] and stated his country of citizenship to be Pakistan. He came to Australia in 2009 as a student. In March 2013 he departed Australia for one month and returned. [In] February 2014 he applied for a protection visa.
He made the following claims as contained in the Department [file]
·     He applied for a student visa as it was his only escape route in order to live.
·     He is a Shia Muslim and claims he is in the minority in Pakistan.
·     He has faced serious discrimination and harassment due to his family’s “historical involvement religiously and academically” and he fears torture or death if he returns.
·     He has been subject to serious acts of offence, harm and faced danger several times.
·     His wellbeing has diminished due to mental and physical abuse.
·     He cannot express his religious beliefs.
·     His father was a public promoter of Shia religious beliefs in Islamabad and was well recognised. The applicant claims he followed in his father’s footsteps.
·     He claims they were teachers and would speak about Shia history and its meaning. He claims it was not radical.
·     The government promotes Sunni views and disregards Shia beliefs.
·     His father received threats from Sunni Muslims and groups of extremists tried to destroy what he had established.
·     He claims his father’s name was known in his city as was his.
·     The applicant claims his father stopped for a while because he received threats.
·     In 2006 he completed year [grade] and went to study in [Country 1] where he remained committed to equality for Shia Muslims so he continued to promote Shia Islamic views [online]. He would travel back to Pakistan to see family and connect with followers who shared his views. Most were Shias but three were Sunni.
·     He returned to Pakistan in May 2009 after completing studies and his followers had grown and he claims that there were now eight Sunni Muslims. However he claims they were spies for a radical Sunni extremist group.
·     In July 2009 he left to study in Australia and handed over his position to someone else. He remained interested and would continue to engage in issues on social media but he was busy with his studies.
·     On a return visit to Pakistan in March 2013 he discovered the Sunni members had betrayed them, the group was embroiled in conflict.
·     His family home was attacked by [men] with covered faces who were part of an extremist militia group that was anti Shia and they told him he had a profile and was foolish to think people would accept what he said. He claims they forced through the two front entrances and smashed [windows] and stomped on furniture. His mother and brother were there.
·     Three weeks prior he received a threatening phone call about his religion. He remained in doors for a week before returning to Australia. He reported the issues to the police but they had no leads.
·     He returned to Australia in April 2013 and his family have told him they continue to receive threats including a bullet case with his name on it and a letter demanding he stop all activities.
·     He has asked his family to disown him and make a public statement so they remain safe.
The applicant provided a character reference from [a school], two certificates [from a university] and a statement of oath by two men claiming to know the applicant and stating “he has grave danger to his life from the banned religion organisation of the other sects of Muslim Pakistan”.
The issue in this case is the credibility of the applicant’s claims and whether he has a profile which would cause him adverse attention from any person or group. The delegate refused the visa. She accepted the applicant’s father was an educator of Shias in Pakistan and that the applicant had also addressed non-Shias on the subject of Shia faith and that he had used social media to promote his views and had received condemnatory remarks. The delegate did not accept that the applicant had received a threatening phone call or that his family had found the bullet case and letter or that the attack had occurred.
Prior to the hearing the applicant supplied a submission dated 21 June 2016. It reiterated his claims that he and his father are teachers of Shia faith and he has been doing this since he was a teenager.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence taken at hearing
He believes that the social media work made it easier for the attackers to track him.
The applicant confirmed he had an agent who assisted him with his protection visa application and there is nothing he wishes to change.
He confirmed he is [age] years old and is of Islamic faith. He was born in [Country 1] and left when he was [age] years of age. The applicant’s family were in [Country 1] because his father was employed by [a] company. He has [siblings] and his parents are still alive. However his father and brother relocated to [another country] [in] May 2015 for fear of being targeted by extremists. His father is a [teacher] of Shia faith [and] his brother is studying. His sisters and mother remained in Pakistan because it was not safe to cross the border without authority. He confirms he remains in contact with his father by phone but they do not have a phone number and he waits for their calls. The Tribunal asked the applicant how his father can work without official papers. The applicant responded by saying it is like an exchange on both sides. He is not working an in an official capacity and many people do it and they can work without official paperwork.
His sisters and mother live in Jhelum in Pakistan. The village is a small community with about [number of] people and they feel safe as everyone knows them. Approximately [a number of] people live in this village. It is predominantly a Shia village. The applicant’s sisters are educated. [Details deleted].
The applicant fears returning to Pakistan. He stated that [in] March 2013 he returned to Pakistan for the first time after leaving and went to Islamabad. His contacts in Pakistan said that the Sunnis who they were educating about Shia faith had links with Lashkar-e Jhangvi (LeJ) a Sunni militant group which operate illegally throughout Pakistan. He said that when he was doing his teachings he had 4-5 Sunnis in the class and they in return go to their communities and promote good relations and positive things to their community. He thought they would spread positive news. He said he was trying to have positive relations and broaden their thinking. Conversion is good but he never forced them. He confirmed that the purpose of teaching is to convert but subtly and by choice.
First he felt cheated when he found out Lashkar-e Jhangvi is serious group. He has no knowledge if the people in his class were members but he was told that there were connections and whilst he confirmed he didn’t know he said that the people who told him must have evidence of them.

[In] March 2013 ([a number of] days after leaving Australia) he received a two minute phone call on the home landline from a person who had a heavy accent and who called him by name and told him to stop what he was doing or it won’t be good for him. The applicant said he was scared and disconnected the call and became really upset. He told his father and his father was also distressed because the person knew him by name.
The Tribunal asked the applicant if he had been involved in any activities which raised his profile and he said that he had jet lag so only gave one talk in Pakistan prior to receiving the call. He surmised that his profile and former work educating about Shia faith made him a target along with the recent talk. He said he is not anti-Sunni. He believes in educating people. He said that LeJ doesn’t care if you were a woman or child they don’t like anyone as they believe educating about Shia faith spreads misconceptions and reduces the credibility of Sunni’s. The Tribunal put to the applicant that it found it hard to accept that a small class of voluntary attendees on Shia faith would profile the applicant, threaten Sunnis and bring him to the attention of members of LeJ. The applicant said people have a different perspective. The applicant did not quantify but stated that there were many people who would attend the sessions. He confirmed his father also educates people in a similar way.
The Tribunal asked the applicant about his and his father’s work educating about Shia faith. He said when he was [an age] he formed a group at school and he delivered a lecture. His father would deliver lectures once in a fortnight. He would also hold interfaith discussions once in a month. They would be held in Islamabad and Rawalpindi. He confirmed around [a number of] people would attend and he organised this for 8-10 years. They would go for 1-1.5 hours and then allow for questions. Promotion was generally word of mouth but sometimes with posters. They would have [a number of] educators at a session. He said he was aware of and involved in these from 1997 until he left for Australia.
The Tribunal asked the applicant what happened when he returned from Australia to Islamabad after the call [in] March 2013. He said that [in] April 2013 around 10am [men] came to his house with their faces covered and [implements] in their hands. He said he lived in a double story [house]. They were shouting and said Shias are not Muslims. He confirmed that along with himself only his mother and brother were at home.
One of the men grabbed the applicant by the collar and pulled out a pistol to his forehead and said if you tell anyone I will “send you sooner”. He said that his Mother begged for his release. The applicant was asked why he can recall these dates now but could not at the time of the delegate’s interview. The applicant responded by saying during the interview he overestimated his English and didn’t have an interpreter.
The Tribunal noted that the applicant achieved [level] averages on his IELTS test which the Tribunal put to him as a concern. The tribunal noted this is a very good score and would enable a person to clearly communicate these details in English. The applicant stated his listening and writing were good. He said he was elevated at his results and wasn’t able to follow at interview.
They put gun to his head and pushed him towards the wall. He confirmed he was attacked but no one else. The Tribunal put to the applicant that it seems unusual that they didn’t ask for his father as he was involved in educating on Shia faith for far longer than the applicant. He said his father did not attend the one education session he gave and that he went with an associate instead. He said it is indicative that he is at risk because they went for him and that during the home invasion they never went for the others. The Tribunal put to the applicant that the series of events as explained lacks logic because he had already conducted an education session and then received a phone warning. Given he had not conducted any further sessions, why would they bother coming to the applicant’s home with [implements] and a gun and holding it to the applicants head? Alternatively why would they make the phone call as a warning if they intended to go to the applicant’s house? Furthermore if they were at the applicant’s house in a [group], why would they hold a gun to his head and then leave voluntarily? The applicant was invited to respond and he said they can do anything. The applicant said he thinks it was planned by them. They thought he was coming back and he was a threat to them. He has no idea what was going on in their heads but he knows they have killed many Shias. The Tribunal asked how they managed to get rid of the attackers and he said his mum begged them to leave. He said he was in shock and his mum grabbed him by the hand and they walked out but he doesn’t know how they left. He confirmed he called his father and then we went to the police station. The Police said they will help us find out who they were but nothing happened. He was asked why he returned to the house and he said he was due to fly out [so] he remained low key. The Tribunal asked the applicant how he could remain low key if they knew where he lived. He said some days he went to his cousin and trusted aids and then he left and departed from home only. He confirmed that no other incidents occurred. He said that after he returned to Australia his family received a bullet in an envelope with his name on it which was left under the gate. The family did not report the bullet to the Police. The Tribunal asked if there was a copy of the police report from the home attack. The applicant said no and that he never supplied a copy to the Department.
The applicant said he also wrote blogs but they would be taken down. He was not sure who took them down and suggested maybe IT groups but he said that he also used [a website] and that would be one. The applicant was asked to write down the social media platforms in which he use to blog on and he wrote down [a website] which the Tribunal noted to the applicant had officially closed down 2 years ago. He also mentioned [other platforms] and he said that he formed a Shia group on [social media] but it’s not running anymore. He said it was removed. The Tribunal put to the applicant that reasonable groups are not removed and you can select who is included and who is removed. He responded that it can get pulled down if reported.
The Tribunal asked the applicant if he has continued to use social networking to encourage dialogue and he said he did for [a number of] months when he returned until it was pulled down. He said he didn’t put it in his name because he didn’t want his name in the title but he formed the group under an administrator in Pakistan. The Tribunal asked the applicant if he uses any other platforms and he said no he has no other means to do it.
The Tribunal asked the applicant if he would continue his Shia education and blogs if he returned to Pakistan. The applicant said that he can’t think of what he will or won’t do because he worries about whether he will be alive.
The Tribunal asked if the applicant’s father or brother have ever been attacked because they are Shias and part of a family claimed to be educators. He confirmed that they haven’t been attacked. He said that they moved to the village because of the applicant because they identified him by name. He stated he was considered more of a threat.
The Tribunal asked the applicant to explain in his words the difference between Sunnis and Shias and he said that it is the way they pray and fasting. He said some Sunni scholars were wrong in how they would project things.
The applicant explained that his sisters and mother have received threats and that is why his father arranged for them to relocate and his father and brother relocated overseas. He said they were being asked about the applicant’s whereabouts and they did not believe he was in Australia and anything could happen to them. They were sick of it so they left. The Tribunal put to the applicant that it finds it hard to accept that his father and brother would leave the country and leave the women behind especially given Pakistan has one of the highest rates of violence against women in the world.
He said that when his brother and father left they did not go the official way because it was so dangerous. He said they experimented by taking an unconventional path and they could not risk taking the females. The Tribunal asked why they have not arranged to have them come now given several years have passed and he said that they still need time to settle down and sort things out. The Tribunal asked the applicant if they have received any threats or enquires in regards to the applicant and he said that they would never tell him.
The Tribunal put to the applicant that if it was prepared to accept that his mother and sister successfully relocated avoiding harm or interest in the applicant’s whereabouts then why couldn’t he return to Pakistan and live with his mother. He said that he can’t relocate anywhere because now Taliban groups are everywhere.
In addition to the issues raised throughout the hearing, the Tribunal put the following credibility concerns to the applicant and invited him to comment. The Tribunal considered Country Information from DFAT Pakistan Country Report 15 January 2016 and the DFAT Thematic Report, 15 January 2016 Pakistan.
It noted the applicant’s claims that he cannot express his religious beliefs however this conflicts with country information which the Tribunal summarised and put to the applicant. The Tribunal noted that whilst Shia’s were in the minority in Pakistan, they still made a sizable percentage of the population, namely 20% and in some areas made up the majority. It noted that Pakistan’s Constitution provides for freedom of religion and laws or government policies do not discriminate against Shias and that DFAT accesses there is little community prejudice against Shias. Furthermore the Constitution makes reference to non-Muslims and Ahmadis but does not distinguish between Sunni Muslims and Shias. Shias can (although rarely do) pray in Sunni mosques and vice versa.
Country information acknowledges that the greatest threat for Shias is from militant groups such as LeJ. Operation Zarb-e-Azb has substantially reduced such violence. In 2010 there were 264 sectarian clashes and 178 deaths. It has been reported that three acts of communal sectarian (i.e. Shia-Sunni) in 2014 resulting in two deaths and in 2015 there were 276 fatalities from sectarian violence. In raw numbers, it suggests that the likelihood of the applicant being targeted is quite low.
The Tribunal put to the applicant that there appears no logic to the sequence of events as he has described and it seems odd that if the extremists would invading the applicants home with weapons yet he was not physically harmed and they left of their own will.
The Tribunal also notes country information which is contrary to the applicants claims. DFAT assesses that Pakistani authorities are broadly willing to protect Shia communities and the applicant could rely on police protection.
The Tribunal has also considered that even if it accepts that the applicant was involved in education that his profile is quite limited and with the passage of time it would be unlikely that he would have any profile.
The applicant was also asked why it took so long for him to apply for protection visa. He admits he took a long time but he didn’t know such visas exist. He wanted to get information on an agent that could best represent him so he did take time as it is a question of life and death and his visa was expiring.
The Tribunal noted that Shias are well represented in parliament and regularly contest elections for mainstream parties.
The Tribunal offered the applicant the opportunity to respond. He said that he father left his mother and sisters because the border area is dangerous to cross. He said that he is [age] years old and whatever he has done he is on the hit list. He said that the Sunnis think that dispelling myths created by scholars is problematic. He said that the incidents of threats and the home invasion are true. He cannot explain the logic or sequence of events and that when he left Pakistan all he could do is say goodbye to his mother. He believes his family is afraid for themselves and the applicant.
The applicant was asked if he wished to provide any further information and he said he is concerned and would like to provide the Tribunal with further information. The Tribunal offered the applicant the opportunity to provide a submission by 29 July 2016.
On 5 August 2016 the applicant’s representative responded to the Tribunal. The applicant provided a link to an online article titled ‘Pakistani Shia man jailed for 13 years for Facebook 'hate speech'’. However the Tribunal notes that the situation is such that the contents of the Facebook material are about spreading sectarian hatred whereas the applicant claims that his is about educating people on Shia faith. In fact, as the applicant has stated his is the opposite. The mere fact that the government are prepared to act on such issues reinforces the country information which states that protection is available to the applicant and Shias are supported.
The applicant submitted that he spoke to his father after the interview and he said that “he started receiving death threats as well about wiping out the ‘men in this family who have been preaching hate about Sunnis’.
The applicant also stated in his submission that he does not necessarily need to show past persecution and as a Shia he is a member of a persecuted group of people and that country information supports this. The applicant supplied a news article [link].
Nationality
The applicant provided a copy of his Pakistan passport. The Tribunal is satisfied that he is a national of Pakistan.
FINDINGS AND REASONS
The Tribunal accepts that the applicant is a male from Pakistan and is of Shia faith.
The Tribunal accepts that the applicant’s father was an educator of Shia faith based on the applicant’s detailed knowledge demonstrated at hearing.
The Tribunal also accepts as plausible that the applicant would assist his father when he lived in Pakistan from the time he was a teenager by attending and then leading education sessions to teach Shia’s more about their faith and to encourage open dialogue with Sunni Muslims. The Tribunal also accepts that this extended to when he studied in [Country 1] and that he would travel back to Pakistan to see family and connect with followers and that some were Sunni. The applicant was able to demonstrate a detailed knowledge about his faith and discuss the benefit of dialogue with Sunnis and the structure of his sessions.
Given the applicant’s interest in Shia faith and his ability to name online sites he was aware of the Tribunal accepts as plausible that the applicant would use blogs and online media [to] share his knowledge and views even when in Australia. The Tribunal accepts as the applicant stated that he had online administrators in Pakistan who would do this for him and he did not use his name. The applicant confirmed that he never promoted anti Sunni sentiment yet he claims his [social media] posts were removed. The Tribunal has no evidence before it to accept this finding and given that the applicant confirmed he never promoted anti-Sunni sentiment then the Tribunal accepts that his blogs may have been removed but does not accept that they were due to any form of censorship by Sunnis.
The Tribunal does not accept that the applicant has a profile which would make him a target for extremists when he was in Pakistan or in the future should he return to Pakistan and continue educating on Shia faith for the following reasons. The promotion of Shia faith is not considered unlawful or blasphemous in Pakistan so he would not come to the attention of the authorities. The promotion of the sessions is very limited as the applicant stated. He confirmed it was word of mouth and some posters. The applicant confirmed he did not put his name to online media blogs and has not done these for some time. The Tribunal does not accept that his father’s work as an educator would further profile him as his father was not mentioned or targeted during the claimed threat and home attack yet he has been running education sessions for far longer.
The Tribunal does not accept that the applicant will be persecuted because he is a Shia in Pakistan or that he is unable to express his religious beliefs. It does not accept that the government promotes Sunni views and disregards Shia beliefs. Whilst the Tribunal accepts based on country information that Shia’s are a minority in Pakistan, the country information confirms that they still make up 20% of the population and that the Pakistan’s Constitution provides for freedom of religion and laws. The government policies do not discriminate against Shias and that DFAT accesses there is little community prejudice against Shias. The Tribunal acknowledges the applicant’s submission post hearing that Shias have been attacked in the past; however the Tribunal is of the view that the likelihood of the applicant being harmed or discriminated against due to being a Shia is less than remote.
The Tribunal finds that the applicant’s delay in applying for protection detracts from his credibility. The Tribunal does not accept the applicant’s response that he didn’t know such visas exist and he wanted to get information on an agent that could best represent him because it is a question of life and death and his visa was expiring. The applicant has been in Australia since July 2009. Nearly five years had passed before he applied for protection. The applicant’s return to Pakistan for one month in March 2013 suggests that he was not fearful about returning as he would not have returned if he was. If, the Tribunal accepted the applicant was targeted when he returned to Pakistan the Tribunal remains unconvinced that the applicant held a well-founded fear because of the delay of 10 months after returning from Pakistan to apply for protection.
The applicant’s ability to recall dates of his claimed phone threat and home attack when he returned to Pakistan for the Tribunal but not for the delegate at interview raises concerns pertaining to the credibility of the claims. The applicant said he over estimated how good his English was at interview and could not articulate this detail. The Tribunal does not accept this reason because the applicant achieved [level] averages on his IELTS test which indicates a very strong grasp of the language. Furthermore the applicant was able to communicate his claims without issue. Whilst the Tribunal notes the applicant’s response that this was for listening and writing, he was able to communicate effectively in all other areas. The Tribunal would expect the applicant to know these or not recall at all but not recall them for one interview and not the other and use the excuse of language issues. This issue contributes to the Tribunals concerns pertaining to the credibility of the applicant’s claims.
The applicant stated in his protection application that he came to Australia (in 2009) and applied for a student visa because it was his only escape route in order to live. The applicant made these unsubstantiated claims pertaining to why his life was threatened but went on to discuss events which occurred in 2013. The applicant did not present any information or claims which would lead the Tribunal to accept that his life was under threat when he first came to Australia and applied for a student visa. This unsubstantiated claim adds further weight to the Tribunal’s concerns pertaining to the applicant’s credibility.
The Tribunal does not accept that on his return to Pakistan the applicant gave one education session and then [in] March 2013 received a phone call from an unknown person abusing him about his faith and warning him and then [in] April 2013 his home was invaded by [extremists] brandishing [implements] and a gun which was held to his head. It is an illogical sequence of events that the applicant would first conduct a session and then receive a call warning call. Furthermore, there would be no reason to receive two warnings. If, as the applicant has explained his family’s profile was so great as to attract such adverse attention then it seems unlikely that the applicant would be awarded a warning call let alone two. It seems illogical that three weeks later [men] would attack his home only to leave after his mother begs them to save her son. The applicant himself contradicted this claim by saying that the extremists do not care about women or children. Furthermore it is illogical that anyone would remain in the same location and act “low key” following two such targeted events as the applicant claims he did. The Tribunal finds these claims to lack credibility.

The applicant also claimed that he reported the attack to the police and they tried to investigate but had no lead. The Tribunal expects that such an incident would be documented and the applicant would have access to an FIR given the nature of the attack. The applicant had no record of the attack when asked by the Tribunal and given the credibility concerns already raised by the Tribunal; the Tribunal does not accept that the applicant reported this to the police.
The applicant provided the delegate with an oath by two men claiming to know the applicant and stating “he has grave danger to his life from the banned religion organisation of the other sects of Muslim Pakistan”. The statement of oath provided minimal detail and as such the Tribunal gives minimal weight to this.
The Tribunal does not accept that the applicant’s father told him after the hearing that he has received death threats stating they will ‘wipe out the ‘men in this family who have been preaching hate about Sunnis’ for the following reasons. The claim lacked detail and the Tribunal would expect the applicant to provide details about when these threats occurred and by what means and how the applicant’s father was contacted given he is not in Pakistan and he left unlawfully for another country so his whereabouts are hard to trace. Furthermore the applicant asserted throughout the hearing that he was the only one ever targeted. It is illogical that with the applicant, his father and his brother overseas for several years that only now the applicant’s father has received random threats. The Tribunal finds that the applicant’s claim lack credibility.
Other than accepting that the applicant and his family are Shia Muslims from Pakistan and that he and his father have been educators of the Shia faith by virtue of education sessions and online blogs, the Tribunal does not accept any other claims made by the applicant pertaining to his fears of harm on return to Pakistan. Cumulatively, given the delay in application, contradictory claims, contradictory country information and an illogical sequence of events, the Tribunal finds that the applicant’s claims are not credible. The Tribunal does not accept that the applicant or his father have received threats which would equate to serious or significant harm that would require them to relocate. The Tribunal does not accept that the applicant has a profile of being a Shia educator and which could be misconstrued for being anti-Sunni or that Sunni’s attended his education sessions and were members of Lashkar-e Jhangvi.or any other extremist group. The Tribunal does not accept that the applicant received an abusive phone call in March 2013 or that his home was attacked in April 2013 and a gun was held to his head. The Tribunal does not accept that when the applicant returned to Australia in 2013 his family continue to receive threats including a bullet case with his name on it and a letter demanding he stop all activities or that he asked his family to disown him and make a public statement so they remain safe. The Tribunal does not accept that the threats have now reached the applicant’s father and brother and that all males in the family are now targeted.
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, for any of the reasons claimed, or for any other reasons.
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
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rachel Westaway
Senior Member

[2017] AATA 1830

10 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction