1501228 (Refugee)

[2017] AATA 3070

1501228 (Refugee) [2017] AATA 3070 (13 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501228

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Paul Windsor

DATE:13 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 January 2017 at 3:23pm

CATCHWORDS
Refugee – Protection Visa – Pakistan – Fear of violence – Extremist groups – Sunni militia groups – Khatme Nubawat – Previous adverse interactions with militia groups – Violent attacks - Extortion - Witness credibility – Evasive oral evidence – Inconsistent evidence – Fabricated material claims

LEGISLATION
Migration Act 1958, ss 36, 65, 434, 424AA, 438, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (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] January 2015.  The delegate found that the applicant’s key claims, that he had been targeted, including for extortion, by a Sunni Militant group (Khatm-e-Nubawat) and had been subjected to violent assaults by members of this group, were not a credible.  The delegate did not accept that the applicant had suffered harm in the past in Pakistan and found there was not a real chance he would be persecuted in the future should he return to Pakistan.  The delegate also concluded that the applicant would not face a real risk of significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan.

3. The applicant applied to the Tribunal for review of this decision on 28 January 2015.  The applicant included a copy of the delegate’s decision record with his review application.

4. The applicant appeared before the Tribunal on 6 September 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant claims to be a citizen of Pakistan who was born in Sialkot in Punjab province Pakistan on [birth date].  The applicant indicates that he is a Shia Muslim and that he speaks, reads and writes Urdu, Punjabi and English.  He states he was married in Sialkot [in] December 2003 and his wife and daughter are residing in Pakistan.  He departed Pakistan legally [in] August 2013 via Lahore International airport and arrived in Australia [in] August 2013, entering on a [temporary] visa[1].

    [1] See folios 12 and 21-32 of Departmental file [file number].

    Summary of claims from the Protection visa application

12. The applicant’s claims from his Protection visa application lodged [in] October 2013 were detailed in a statement included with his application[2].  His claims can be summarised as follows:

    [2] See folios 33-39 of Departmental file [file number].

    ·He faces substantive human and religious rights abuses due to his religious background as a member of the Shia sect in Pakistan.  He is a member of the small minority Shia community in the Punjab province of Pakistan.  Recent unstable sectarian violence has killed hundreds and thousands of minority religion group members making it impossible to live in Pakistan.

    ·He faced enormous religious persecution from other students during his study at his local school and college.  He was often neglected by other students and not included in sporting events and extra-curricular activities.

    ·It was difficult to find employment as a Shia community member.  His father encouraged him to assist his father in his business, which was very successful.  After 8 years he decided to establish his own business, in partnership with his [brother].  This business became very [successful].

    ·He and his partner were receiving anonymous telephone calls abusing them for being Shias running a successful business in a Sunni Muslim country.  While the calls increased they could not find out who was responsible.

    ·In [2011] he received an anonymous call on his mobile phone demanding [an amount] as a donation to the Khatme Nubawat organisation if they wished to be unharmed and continue to run the business in Sialkot.  They decided to report the matter to the police but the police said they could not take action without details of the caller.  Within a few weeks he received a further call demanding payment within [a number of] days.  Fearing he would be harmed or killed he agreed to pay the demanded money.

    ·Once he made the payment they sought more money.  He refused which angered them.  Once he was working in the [business] and [a number of] people just walked in, introduced themselves as members of the Khatme Nubawat organisation and said as a Shia if he wanted to run his business he would have to pay [an amount] per month.  When he protested he was assaulted in front of his staff.

    ·[Later in] 2011 he was accosted by [a number of] people who said they had been looking for him to collect the demanded money.  When he said he didn’t have money with him he was attacked with [a weapon] and [he sustained a serious injury].  He was unconscious but was taken to hospital by people who saw the incident and came to his rescue.  If not for those people he would have been killed.  It took [a number of] months of intensive treatment for him to get back on his feet and [he has suffered permanent impairment as a result].  He went to the [Country 1] in April 2012 to recover mentally and morally.

    ·When he returned his family members and he decided to close the business due to the risk of further incidents and harm to family members.  They decided to close gradually so as not to lose [money].  His brother played an active role while other family members kept a low profile.  He shifted his wife and children to his [relative]’s place in Faisalabad knowing they might be at risk of kidnap for ransom which is common in Pakistan.

    ·As the business wound down his father and brother decided to keep the building and limit the business to a few [customers] as a source of financial support for the family.  He lost interest in operating the business.  On visiting Australia and seeing the freedom of religion and life compared with the sectarian violence in Pakistan, which the Pakistani government failed to control over recent years, he decided to apply for protection.

13. The applicant’s representative also provided a supporting statement summarising the applicant’s claims[3].  The representative also included a copy of the first page of the results of a ‘Google’ internet search on ‘Persecution of Shia community in Pakistan’, and an excerpt from the April 2013 Annual Report of the US Commission on International Religious Freedom in relation to Pakistan[4].

    [3] See folios 73-76 of Departmental file [file number].

    [4] See folios 66-72 of Departmental file [file number].

14. The applicant attended an interview with the Departmental delegate [in] August 2014.  [In] November 2014 the departmental delegate invited the applicant to ‘provide further comment’ on some concerns the delegate had regarding the applicants claims[5].  Key issues from the applicant’s responses to the issues raised can be summarised as follows[6]:

    [5] See folios 63-64 of Tribunal file 1501228.

    [6] See folios 113-125 of Departmental file [file number].

    ·He travelled to [Country 1] in April 2012 to rest and relax for a while, after recovering from hospital in Pakistan, for his mental peace after all the incidents and disappointments he confronted in Pakistan.  He returned after 3-4 weeks rather than applying for protection in [Country 1] because he had family and his business in Pakistan.  His previous visits to [Country 1] were purely for business reasons.

    ·On his return to Pakistan he only travelled to Sialkot occasionally to attend to urgent issues in connection to gradually closing down the business, and remained behind closed doors in the family home.

    ·He confirms that he went to the police regarding the anonymous caller.  Initially he did not tell the police the caller said he was from Khatme Nubawat.  It was only when they said they could not write a report unless the details of the caller were provided that he told the police they were from Khatme Nubawat.  When he told police the callers were members of Khatme Nubawat the police advised him that he should just pay up (for his own safety).

    ·He did not experience further issues after he returned from [Country 1] because he was not attending the business which was winding down as arrears were recovered and staff reduced.  They also changed phone numbers and lived behind closed doors with limited movement.  This obviously discouraged those who were after money.

    ·His wife and children are still living in Faisalabad and if they make an occasional visit to Sialkot do so with exceptional care and caution.  He would not be safe in Faisalabad because he was the prime target of the Khatme Nubawat members previously.

    ·He did not mention prior to his interview with the delegate that his father’s business had also been targeted for harassment by Khatme Nubawat because he thought he had sufficient grounds of his own to apply for protection.

    ·He did not take the initial calls demanding money seriously as it is human nature to wait and see what happens next.

    ·The people who took the applicant to the clinic may have been aware of his financial capacity to bear the cost of the treatment at the clinic which would be quicker and better treatment. 

    ·He believes [certain medical] issues were a result of the assault in Pakistan.  He has provided a report from the treating doctor and [a] surgery report.

    ·There are ample instances of Shia-Sunni incidents in Sialkot including the bombing of a Shia mosque in 2004 where 30 people were killed.

    ·Khatme Nubawat is basically a Sunni extremist group who are against the Ahmadis in Pakistan but this does not mean they do not take on the Shias.  Sunni extremist groups such as Sipah-e-Sahaba, Tehreek-e-Sunni, Khatme Nubawat and Lashkar-e-Jhangvi act as operational forces to harm the religious minorities including Shias.

    ·The violence the applicant fears is not an isolated and generalised incident but is on the grounds of his Shia religion and done to him deliberately due to his religious background.

15. The applicant provided medical records from [a hospital] regarding separate surgeries in 2014 to [treat a particular condition][7]. 

    [7] See folios 93-101 of Departmental file [file number].

16. The applicant also provided a medical record stamped [in] 2011 from [a medical clinic] in Sialkot indicating that he attended the [clinic] [in] 2011 ‘with the complaint of [serious injuries]’.  The report indicates that the [injury] was [treated] and the applicant visited off and on for this issue and the [injury] properly healed and that he is advised to [undertake further remedial treatment][8].

    [8] See folio 110 of Departmental file [file number].

17. The applicant also provided a copy of advice from [a senior official] of [an organisation] dated [in] June 2014 stating that he is a member of the Shia community.  The advice also indicates that the applicant has been a successful businessman and recently has been targeted by a fundamentalist extremist group due to his Shia background, causing him to cease his business operation in Pakistan, and that he was the subject of an attempt to murder and [he was injured during the attempt] resulting in him being in hospital for a long time to recover[9].

    [9] See folio 109 of Departmental file [file number].

    Pre-hearing submission

18. The applicant’s representative forwarded to the Tribunal a submission on behalf of the applicant dated 28 August 2016[10].  Additional issues raised in this submission are summarised as follows:

    ·When the applicant was attacked a second time he was punched and kicked from everywhere and finally [he suffered a serious injury].  He was taken to hospital where he was treated for [a number of] months including [a number of] weeks in intensive care and the rest of the time therapy and other treatments by visiting the hospital.

    ·When he arrived in Australia [in] August 2013 he had [a particular injury]] caused by the punching at the time he was assaulted.  His [injury was] treated at [a] hospital.

    ·After the applicant’s arrival in Australia his father and brother were still having problems with Khatme Nubawat members.  His brother left the business and went to [Country 2] where he has applied for protection.

    [10] See folios 51-71 of Tribunal file 1501228.

19. The representative asserted that while the applicant has a visa for [Country 1] valid for entry until [June] 2018 section 36(3) of the Act does not apply in his case because, having applied for protection in Australia, he might now be denied entry into [Country 1]. The representative also made legal arguments and referred to country information which he claims is relevant to the applicant’s claims to fear persecution in Pakistan due to his Shia religion.

    Evidence from the hearing of 6 September 2016

20. At the hearing the applicant indicated that Sialkot is a city of approximately one million people located 110 km from the capital Lahore in Punjab province.  He estimated that 10-20 per cent of the population of Sialkot are Shia Muslims and indicated that there are 50 or more Shia mosques in the city including 3-4 major imambargahs.

21. The applicant indicated that his wife and [children] remain in Pakistan, living with his [relative] in Faisalabad, a city in Punjab province located almost 200 km from Sialkot.  He said his [younger] brother now lives in [Country 2] where he has the ‘same status – protection visa’.  He is not sure when his brother went to [Country 2] or where he is living there but said it was after he came to Australia.  He said he has no contact with his other brother and that he last spoke with him more than a year ago.  He does not know where this brother is living or what he is doing.  He said he also has no contact with his sisters who are married.  His father is aged in his [age].  His father is retired and stays at home as he is not well.

22. The Tribunal discussed with the applicant the key elements of his claims.  Where relevant his evidence at the hearing in relation to these matters is discussed in the Findings and reasons section below.

23. Towards the end of the hearing the applicant’s representative expressed some frustration with the way the applicant was presenting his evidence’s evidence and commented that the applicant has no capacity to explain his story and that he provided very brief answers and provided some evidence that was inconsistent with his written statement.  The representative commented that he himself did not find credible the applicant’s response that he had not spoken with his wife for the last six months.  The representative indicated that from his own personal [experience] he knew that when militants wanted to extort for financial gain they can use religion as an excuse and are very difficult to deal with.  He asserted that reporting by the Department of Foreign Affairs and Trade (DFAT) is based on high level consultations and does not reflect the on-the-ground reality.  The representative maintained that the applicant was a successful businessman who was travelling internationally, was not short of money and had a [visa] enabling him to enter [Country 1] valid until 2018.  He commented that if nothing had happened to the applicant why would he not go home to his wife and children who he has not seen in three years rather than continue to live in Australia working in menial jobs.  The applicant added that he is living a shameful life in Australia.

    Findings and reasons

24. The issues in this review are whether there is a real chance that, if the applicant returns to Pakistan, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Applicant’s identity

2. On the basis of the copies of the applicant’s passports provided by the applicant to the Department[11], and noting the delegate’s findings in this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be.  The Tribunal accepts that Pakistan is the applicant’s country of nationality for Convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

   ‘Notification’ under Section 438 of the Act

   [11] See folios 59-65 of Departmental file [file number].

3. The Departmental file contains a notification regarding the disclosure of certain information under s.438 of the Act[12].  This relates to information on the file[13] regarding the applicant having applied for visas to [Country 1]. The Tribunal considered this information and the notification under s.438(1)(a) that the Tribunal’s use and disclosure of this information is subject to the provisions of subsections 434 (3) and (4) of the Act because disclosure of the information would be contrary to the public interest as it reveals the inner workings of the Department. The Tribunal found that this was not a valid certificate under s.438 of the Act, however, as it was clear from their evidence that the applicant and his representative are well aware that Australia may share certain immigration information with [Country 1] and the material in question was marked indicating that it ‘may be disclosed to the data subject as part of immigration case handling in accordance with relevant privacy and/or FOI laws and policies’.

   [12] See folio 153 of Departmental file [file number].

   [13] See folios 88-92 of Departmental file [file number].

4. Having found the notification was not a valid certificate under s.438 of the Act the Tribunal considered whether this information should be put to the applicant for comment under s.424AA of the Act. As the applicant having held visas for travel to [Country 1] and having travelled to [Country 1] in the past was not an issue in contention in this case, and therefore the Tribunal did not consider that this information was information that would be the reason or part of the reason for affirming the decision under review, the Tribunal did not put this information to the applicant.

   Credibility

5. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

6. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

7. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

8. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

9. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 (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.)

   Assessment of claims

10. The applicant claims to fear serious harm generally as a member of the minority Shia community in Pakistan but also specifically from members of the Khatme Nubawat organisation who he describes as a Sunni extremist group who are primarily against the Ahmadi community in Pakistan but also ‘take on’ the Shias.  He claims that, as a Shia, he faced enormous religious persecution from other students while at school and college and had difficulty finding employment.  He claims that he established a successful business in partnership with his [brother] but because of their Shia religion they were harassed and threatened and he was attacked by members of the Khatme Nubawat organisation who sort to extort money from them.  The applicant claims that if he returns to Pakistan members of the Khatme Nubawat organisation would seek to locate and harm him.

    Credibility issues

11. Based on the evidence provided to the Department and the Tribunal, the Tribunal has concluded that the applicant is not a credible witness and that he has fabricated the key elements of his claims.  Specific examples of inconsistencies in the applicant’s evidence which support this finding are discussed in detail below.  In general, the Tribunal considered that the applicant was evasive when providing evidence at the hearing, giving brief answers, seeking to avoid providing detail, providing misleading evidence and untrue evidence.  His representative commented at the hearing on the applicant’s manner, noting that he (the representative) did not accept the evidence given by the applicant that he had not spoken with his wife for the last six months, and that this raises credibility issues.  The representative asked that the Tribunal accept that the applicant’s ‘shortfall’ is that he has no capacity to explain his story and has often responded with one word answers.  The representative also asked that the Tribunal allow for the fact that applicants’ get anxious and will not always be able to provide oral evidence that is100 per cent consistent with earlier written statements.  The Tribunal has taken the representative’s comments into account but finds, for the reasons detailed below, that these factors do not account for the deficiencies in the applicant’s evidence, and therefore finds that the applicant is not a credible witness.

    Claims regarding persecution during his education and when seeking employment

12. The Tribunal accepts that the applicant is a Shia Muslim who was born and lived in Sialkot in Punjab province Pakistan.  He claims that sectarian violence has killed hundreds and thousands of minority religion group members making it impossible for them to live in Pakistan.  He also claims that he faced enormous religious persecution from other students while undertaking his education and found it difficult to find employment because he was a Shia.

13. In considering these claims, and as discussed with the applicant at the hearing, the Tribunal has had regard to advice from the Department of Foreign Affairs and Trade (DFAT) regarding the Shia community in Pakistan[14] which indicates the following:

    [14] DFAT Thematic Report, Shias in Pakistan, 15 January 2016.

    ·20 per cent of Pakistani Muslims, who comprise approximately 95 per cent of Pakistan’s population of 190 million, identify as Shia (that is, approximately 37 million people).

    ·The Shia population is spread throughout Pakistan.  Large Shia communities live in urban centres throughout Pakistan.  Although some Shias live in enclaves in these cities, Shia and Sunni communities are generally well-integrated.  Shias are also dispersed throughout Punjab.

    ·Article 20 of Pakistan’s Constitution provides for freedom of religion.  No laws or Government policies discriminate against Shias on the basis of religion.  Broadly speaking, there is also little community prejudice against Shias: societal discrimination is largely confined to local nepotism, favouritism or patronage.  The greatest threats for Shias in Pakistan are from militant groups and, at times, sectarian clashes.

    ·Shia mosques and places of worship, or imambargahs, are located throughout Pakistan.

    ·Sunni and Shia students attend the same public and private educational institutions. Although the Constitution prohibits discrimination in granting admission to government educational institutions, students must declare their religious affiliation when applying for entry into public and private institutions, including universities. DFAT assesses that there is no specific discrimination against Shias in relation to education. Access to high quality education for all Pakistanis, including Shias, is variable and depends on their geographic location and financial resources; however Shias can experience a low level of discrimination because of religious bias in textbooks.

    ·DFAT assesses that Shias do not suffer greater economic disadvantage than other groups in Pakistan.  Shias are well-represented among high-level professionals such as doctors and lawyers.  Credible human rights groups have told DFAT there is no evidence of discrimination against Shias in gaining admission to the civil service, police, military, or private sector.

    ·There are many Shia student, community and charity networks.

    ·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.

    ·While Pakistan continues to face security threats from terrorist, militant and sectarian groups, since the commencement of the counter- terrorism military operation Zarb-e-Azb, in June 2014, Pakistani military operations against terrorist and militant groups in the FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country.  This trend has continued over the course of 2015.  Credible sources have reported a 75 per cent reduction in the number of terrorist attacks throughout Pakistan from Sept 2014- Sept 2015.  Sources attribute this to Operation Zarb-e-Azb, as well as the 20-point National Action Plan on counter-terrorism.

    ·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. This represents a sharp decline from the 264 sectarian clashes and 178 deaths recorded in 2010.  According to the South Asia Terrorism Portal (SATP), there were six attacks on Shia mosques in 2015 which killed 111 people. This represents an increase in casualties but a decline in the overall number of attacks from 2014 (there were seven attacks on Shia mosques in 2014 resulting in 14 deaths). The most significant attack in 2015 was against a Shia imambargah in Shikapur, Sindh province, on 30 January 2015, which killed 61 people.

    ·DFAT assesses there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high-profile professionals.  Although Shias are more prominent during Ashura processions, heightened state protection measures during these celebrations mitigate the threats associated with this greater exposure.

    ·Levels of generalised and sectarian violence remain lower in Punjab than other parts of Pakistan.  Credible sources have told DFAT more recently Lahore has experienced a 20-25 per cent reduction in the rates of ‘crime against persons,’ including kidnapping, since the commencement of Operation Zarb-e-Azb and implementation of the National Action Plan.  In 2014, there were 18 sectarian attacks in Punjab and the Islamabad Capital Territory combined, resulting in 21 deaths. According to the SATP, a total of 16 Shias died in three attacks in Punjab and the Islamabad Capital Territory in 2015. This included separate IED attacks on different Shia imambargahs in Rawalpindi on 9 January and 18 February 2015, and an attack on a group of Shias returning from a religious gathering in Rawalpindi on 16 January. There were no Shia deaths from sectarian violence in Lahore in 2015.

14. At the hearing the applicant indicated that 10-20 per cent of the population of Sialkot is Shia and that there would be more than 50 Shia places of worship in Sialkot, including 3-4 main imambargahs.  The Tribunal finds that this is consistent with the DFAT advice.  When asked at the hearing about problems he experienced when studying, the applicant spoke in generalities, commenting that they were against us all the time, they disturbed us in class, they disturbed us when we got out of class, and this went on all the time.  When queried that he completed 14 years of education and achieved a [degree], the applicant simply said ‘yes’.  When pressed he said it was really hard for us.  When queried about problems he faced securing employment he said job applications were rejected without explanation.  When asked for examples he said he applied to [certain businesses] and was interested in [that industry] but it was no use.  While the Tribunal accepts that, as a Shia, the applicant may have suffered some low level discrimination from some members of the majority Sunni community at times, based on the applicant’s evidence and the DFAT advice that, broadly speaking, there is little community prejudice against Shias and no evidence of discrimination against Shias in gaining admission to employment, including in the private sector, the Tribunal does not accept that the applicant suffered treatment amounting to persecution.  The Tribunal finds that the applicant’s account is inconsistent with the DFAT advice cited above and with his own level of achievement, both academically, where he achieved a degree level qualification, and in employment, where he became a successful businessman.  The Tribunal also notes that in Form 80 of his application the applicant indicated that he completed his studies in March 1992 and commenced working in his father’s business in April 1992, indicating that there was no delay in his completing his studies and commencing employment in his father’s business and therefore no period of unemployment as a consequence of him lodging job applications which were consistently rejected.  The Tribunal does not accept that the applicant faced significant difficulties or persecution amounting to serious harm during his education and in obtaining employment in Pakistan.

15. While the applicant claimed in his statement that ‘recent unstable sectarian violence’ is killing hundreds and thousands of minority religious groups members making it impossible to live in Pakistan, the country information indicates that this is not the case.  The DFAT advice makes clear that Pakistan continues to face security threats from terrorist, militant and sectarian groups, and that 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).  However, it indicates that the number of Shias killed across Pakistan annually peaked at over 500 in 2013 and the annual number of Shias killed in incidents of sectarian violence has declined significantly since 2014.  DFAT assesses there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high-profile professionals.   As discussed with the applicant, this trend has continued into 2016, with the South Asia Terrorism Portal (SATP) reporting that only 25 Shias were killed in 16 separate incidents across Pakistan in 2016, and indicating a low level of incidents of anti-Shia sectarian violence in Punjab province[15].  The applicant commented that he does not trust these reports or believe they are true and that the on-the-ground reality is entirely different.  He commented that the media can only report on issues with the permission of the government.  The applicant’s representative suggested that DFAT reporting is based on meetings with Ministers, generals and other high level officials rather than sources with on-the-ground knowledge or a willingness to report what is really happening.   In response to these concerns the Tribunal shared with the applicant the following advice from DFAT regarding the sources for its reports:

    This report is based on DFAT’s on-the-ground knowledge and discussions with Government,
    non-government, community and international sources in Pakistan, including in Islamabad, Lahore and Peshawar. It takes into account relevant and credible open source reports, including the World Bank, United States Central Intelligence Agency, United Nations Development Program, United Nations High Commissioner for Refugees, United Nations Office for the Coordination of Humanitarian Affairs, United Nations Office on
    

    [15] 2016, SATP, Shias killed in Pakistan since 2001 (Data till December 31, 2016).  Sourced at and Crime, Centre for Research and Security Studies, South Asian Terrorism Portal, International Crisis Group, Pakistan Institute for Peace Studies, FATA Research Centre, Human Rights Commission Pakistan, Pakistani Government departments, non-government organisations and media organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

16. The applicant commented that these sources are related to the same people and what is written is not the reality.  He commented that the Chief Justice’s son had been kidnapped so even he was not safe in Pakistan.  He commented that no place in Pakistan is safe and nobody is safe there, even a person living with a security guard.  The Tribunal has considered the applicant’s comments but is satisfied that there is ongoing and detailed reporting on the situation on Pakistan, including regarding incidents of sectarian violence and including from pro-Shia sources such as Shiite News and Dawn newspaper, and which also includes comment which is critical of the Pakistan government.  The Tribunal is satisfied that the available reporting on the situation in Pakistan, including the DFAT reporting, provides an accurate reflection of the situation in the country.

17. Based on consideration of the applicant’s evidence at the hearing, the relevant country information cited above, and DFAT’s assessment that there is a low risk of harm from sectarian violence for most Shias in Pakistan, the Tribunal finds that the applicant does not face a real chance of persecution amounting to serious harm in Pakistan solely on the basis of his Shia religion.

    Claims in relation to the applicant’s business activities

18. In his written statement the applicant claims that after eight years working in his father’s very successful [business] (from 1992-2000) he decided, with his father’s encouragement and financial support, to establish his own [business].  He indicated that he did this in partnership with his [brother] and that he held a 34 per cent shareholding.  He indicated that this became a successful [business] and he travelled extensively overseas, including to [various countries], to market their products.

1. The delegate indicated in his decision record that the applicant did not provide any supporting documents regarding his business activities and the delegate was unable to locate any information about this company on any internet business directory entries, but stated that he extended the benefit of the doubt to the applicant and accepted that he owned and operated a successful business in Pakistan.  The Tribunal advised the applicant at the hearing that it might not make the same finding as the delegate and indicated that it also was unable to locate any references to this company through internet searches.  The Tribunal asked the applicant if the [type of business] was a common business in Sialkot, noting that the Tribunal’s internet searches indicated that Sialkot appeared to be a centre for [businesses of various types].  He indicated that Sialkot was second to [another country] in this field.  In relation to being unable to find references to the company he said if a bill is not paid for a month then the website is turned-off.  The applicant commented at the hearing that he had not brought any papers with him to Australia but could show the Tribunal how they made [items].  The Tribunal commented that it could not find any historical records or references to the company which seems surprising given he indicated it was a very successful [business] with a national and international reputation.  He said they had not made payments for one to one and a half years so it was now disconnected from the phone and internet and that may be one of the reasons.  The applicant said he had a 50:50 share in the company with his [brother].  The Tribunal queried the applicant that his statement said he had a 34% share.  He commented that his initial stake was 34% and each of his [brothers] had 33% but the brother with whom he no longer has any contact withdrew after around 5-6 years.  The Tribunal queried the applicant that his statement made no mention of his other brother being involved with the business and said he went into partnership with his [brother] in October 2000.  The applicant commented that when he made the statement his brother had already withdrawn. 

2. When asked about the business, the applicant indicated that they could [particulars of business].  The Tribunal queried the applicant that it appeared to be a highly skilled business and quite a leap from what he had been doing in his father’s [business].  He said he had friends who were highly experienced in the field who helped him and provided some of the workers.  The Tribunal queried why they would help him to go into business in competition against them.  He said they encouraged him and he did not sell to their customers.  The applicant said they had a [premises] [in] Sialkot and employed [permanent] staff.  [Details of business].  When asked how they marketed their goods he said that while they had a [website], they contacted suppliers directly by phone or in person due to the low literacy levels in Pakistan.  The Tribunal queried that people who work in [a particular workplace] would have low literacy and the applicant responded that they did not deal directly with [these workplaces] but dealt with suppliers.

3. At the hearing the Tribunal had significant doubts regarding whether the applicant and his brother/brothers set up and ran a [business] in 2000.  The Tribunal would expect that if this had been the case and the business operated for thirteen years until as recently as August 2013, and if the business was as successful as the applicant claimed, there would be some historical references to the business on the internet.  While the Tribunal accepts from the applicants evidence at the hearing that he had knowledge of the processes involved in [the business’s work], the Tribunal was not convinced by the applicant’s claims that he was able to establish a new business in this highly specialised field with the assistance of friends who were already in the field and who also provided him with skilled staff.  Despite the concerns raised by both the delegate and the Tribunal the applicant has not sought to obtain and provide any documents supporting his claim that he established and ran this business with the support of his father and in partnership with his brothers/brother for thirteen years.  After considering the totality of the applicant’s evidence, including the matters discussed below, the Tribunal concluded that the applicant did not establish his own [business] but likely worked for a time for an established [business].

   The Khatme Nubawat Organisation

4. The applicant claims that in 2011 his business became a target for extortion by members of the Khatme Nubawat (also Khatm-e-Nubawat).  The DFAT advice cited above indicates that Shia Muslims in Pakistan 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), but does not refer to this organisation.  The delegate indicated in his decision record that country information from the UK Home Office and the South Asia Terrorism Portal predominately describes Khatm-e-Nubawat as an anti-Ahmadiyya group engaged in pamphleteering and hate propaganda against Ahmadis.  In his submission in response to the delegate’s written concerns, the applicant acknowledges this is the case but commented that this does not mean they do not take on the Shias.  The Tribunal also identified country information which indicates that Khatm-e-Nubawat is concerned to ‘safeguard and preserve the dogma of the End of Prophethood’ with the demise of the Prophet Muhammad, and therefore opposes Ahmadis who believe that ’Divine revelation continues as before, and there is no bar to the advent of a Prophet who is subservient to Prophet Muhammad’[16].  While Khatm-e-Nubawat is a lesser known organisation with a specific focus of opposition to the Ahmadi community, the Tribunal accepts that this does not preclude this group seeking to harass and/or threaten members of the Shia community.

   Claims of harassment, threats, and physical violence by members of Khatm-e-Nubawat

   [16] Majlis Tahaffuz Khatme Nabuwwat (The league to protect the End of Prophethood) sourced at >

   In his statement the applicant claims that he and his business partner (his brother) began receiving telephone calls from members of Khatm-e-Nubawat abusing them because of their Shia beliefs and in June 2011 demanding that they pay [an amount] as a donation to Khatm-e-Nubawat if they wished to remain unharmed and to continue their business in Sialkot.  The applicant claims that he met this demand but was then asked to pay [an amount] per month.  He claimed that when he refused to do this he was assaulted in his office and in December 2011 was attacked with [a weapon] in the street in an incident where he was struck so hard [he sustained serious injuries].

5. At the hearing the applicant said they first received calls from this organisation in June 2011.  When asked if they had issues before this time he said they had not but felt someone was watching them.  When asked why this was the case he said they had received calls where no-one talked they just asked for their names.  When asked he indicated these calls first occurred about one month before they received threat calls.  He confirmed that for the first 10 years of running the business there were no issues other than struggling to make it a success.  The Tribunal asked what changed in 2011.  The applicant commented that they were very well settled and his brother bought [cars] so people observed that they were now successful in their business.  The Tribunal asked if his father also experienced issues in his business.  He said yes his father experienced problems after this and commented that his father was in tension because of what had happened to him and his brother.  When asked what he meant by this he explained that his father did not want he and his brother to be harmed due to the threat.  The Tribunal queried the applicant that the delegate’s decision record indicates that he told the delegate at their interview that his father’s business had also been targeted for extortion, and the delegate queried why the applicant had not mentioned this in his application.  The applicant said his father did not tell them about this as he did not want them to get upset.  The Tribunal queried the applicant that what he was saying was different to what he just told the Tribunal.  The applicant replied that his father did not tell them anything about his circumstances.  The Tribunal found the applicant to be evasive and inconsistent on this point.  When asked at hearing if his father’s business had also experienced problems the applicant clearly told the Tribunal that his father’s concerns related to whether the applicant and his brother might be harmed, after they received threats in June 2011.  The Tribunal does not accept the applicant’s claim made to the delegate that his father’s business was also targeted for harassment and extortion by members of Khatm-e-Nubawat.

6. The applicant said his brother also received threat calls but stopped using his phone as he was afraid.  He said he went to the police after 10 days and had been to the police many times to report that they were getting these calls but the police just said we will check and we will see but never did anything so they stopped going.  He said the calls kept coming and they did not attend to them so one day the people came to the office.  The Tribunal asked if anything happened before that.  He replied that they came to the office once before but he was not there so they abused some other people in the office and left.  He said when they came to the office while he was there they used abusive language, started beating people and beat and punched him.  The Tribunal asked the applicant when this occurred.  He said it was about 6-7 or maybe 8-9 months later.  He said once they even asked for money.  The Tribunal asked the applicant when they asked for money.  He said it was around 8 months later and then they said he must give money every month.  He commented that once they had given these people some money they realised they could not afford to do this as the people kept calling and asking for more money.  He thought they would stop but once again they came to the office when he was not there.  The Tribunal asked the applicant why he gave them money and if he told the police these people were seeking money.  He said they gave money to save their lives as they had no other option.  He said the police were not helpful and if they had told the police these people were seeking [money] the police would have asked for money.  The Tribunal queried the applicant regarding how they delivered the money to these people.  He said his brother left it at a designated place outside the city as he (the applicant) was afraid.  The Tribunal queried the applicant that previously he had said his brother stopped using his phone as he was afraid of these people and asked why his brother would agree to drop-off the money.  The applicant said he (the applicant) was afraid because he had already been beaten by these people.  Considering the totality of the applicant’s evidence, including matters discussed below, the Tribunal does not accept that these incidents occurred.

7. The Tribunal put to the applicant that his account at hearing was very different to what he had written in his statement.  The Tribunal read the relevant parts of his statement which indicated that he went to the local police to report that a demand had been made for [an amount] but the police took no action; a few weeks later he received a call demanding payment within 3 days and that he decided to pay the demanded amount but after doing so they continued to seek more money from him; he told the people over the phone that he would not pay more and they can kill him if they want, which made them really angry; and it was after this that four people from Khatm-e-Nubawat came to his office and assaulted him when he protested about the way he was being treated by them.  The applicant was not able to explain the inconsistencies in his accounts but rather commented they could not pay the money within the three days demanded by the Khatm-e-Nubawat members and that the first time the people came to his office he was not there.  The Tribunal also notes that in his written response to the delegate’s queries the applicant indicated that once the police were aware the callers were from Khatm-e-Nubawat the police advised the applicant to pay the money for their own safety, contrary to his advice at hearing that he did not tell the police that the Khatm-e-Nubawat members were seeking [money] because the police would have sought money from him.  

8. The applicant said that in December 2011 when he was walking home from the mosque 3-4 people approached him and one commented that he was not ready to listen to what they had said to him and then attacked him and hit him [with a weapon].  When queried he said there were four people (contrary to his statement which indicated he was approached by three people) and he was hit with the [weapon], which was a [particular type of weapon], because he had resisted their demands.  He said he suffered [a serious injury].  He said he was saved when people saw the incident, some people came from the mosque and the attackers ran away.  He was taken to the doctor at a clinic where he [was treated].  He said he stayed at the clinic for two weeks.  When queried by the Tribunal he said [details of injuries].  He said he stayed there for two weeks because he was told that if he moves it [will worsen his injury].

9. The Tribunal put to the applicant that in his original statement he said they tried [incapacitate him] so he couldn’t run away and that his [details of injury], he was immediately unconscious, and was taken to hospital and it took him two months to recover.  The statement of [August] 2016 said he was taken to hospital, where he spent two weeks in intensive care and was treated for two months.  The Tribunal commented that the medical report he had provided from the doctor at the [clinic], dated [December] 2011, indicated that he was treated as an outpatient at the clinic [in] December 2011 for a [particular injury], and was advised to have [further remedial treatment].  The applicant said it was a small place but he stayed there for two weeks.  When asked why the report said he visited as an outpatient he did not answer.  When asked why he needed to stay at the clinic for two weeks if there was no [severe injury] he said it was because he had [to keep still] or the [injury would worsen].  When queried further he said the doctor was afraid to treat him but he was there for two weeks and after two weeks he went there for follow-up visits.  The representative commented that the applicant probably went every day for [treatment] and considers that to be ‘intensive care’.  The Tribunal was not persuaded by the arguments of the applicant or his representative.  The applicant showed the Tribunal a visible [scar].  The Tribunal accepts that he has had treatment for [an injury] that required stitches but considers this may have resulted from an accident and does not accept that it was as a result of him being attacked by Khatm-e-Nubawat members with [a weapon].  The Tribunal considers that if it had been caused by [a weapon] strike [there] would likely have been greater [damage].  The applicant maintained that he spent two weeks staying at the clinic and then attended for follow-up visits, contrary to the comments by his representative, and the medical record which he provided (which was dated [December] 2011, 15 days after he was recorded as having attended the clinic [in] December 2011) and states he visited on and off for this issue and the wound properly healed (that is, within that 15 day period).  The Tribunal also asked the applicant if he went to the police after this claimed incident.  Initially he said he could not remember if he went to the police after the claimed attack but commented that whenever he went to the police they did not assist but said ‘we will see’.  The Tribunal queried him that he said he was attacked twice, and that he could have given a description of the attackers to the police.  He said he was warned that if he went to the police his life would not be saved.  The Tribunal put to the applicant that circumstances had changed as he was claiming that they had tried to cut his leg off.  He replied that the police are not so helpful.  While the Tribunal accepts that police corruption is an issue in Pakistan and the applicant may not have considered police are helpful, the Tribunal has difficulty accepting that the applicant would not report to police that he had been attacked with [a weapon] in an attempt to murder him.  After considering the totality of the evidence in relation to this matter the Tribunal concludes that the applicant has fabricated the claim to have been struck [on a particular body part] with [a weapon] by a Khatm-e-Nubawat member, in an attempt to strengthen his claims for protection. 

10. In reaching this conclusion the Tribunal has considered the document the applicant submitted from [a senior official] of [an organisation] dated [in] June 2014 which states, inter alia, that they know the applicant has been targeted by the fundamentalist extremist group due to his Shia background, causing him to cease his business operation in Pakistan, and that recently an attempt was made to murder him where [he was attacked with a weapon] resulting in him being in hospital for a long time to recover.  The Tribunal cannot know the motives of the author of this advice and therefore does not accept this advice as evidence that the claimed events occurred.  For the reasons outlined above, the Tribunal has concluded that the applicant was not [attacked with a weapon] in an attempt to murder him and did not spend a long time in hospital recovering.

11. The Tribunal also considers that the applicant has fabricated the claims that he sustained [other] injuries when he claims he was beaten by Khatm-e-Nubawat members in 2011, that he had [bruises] when he arrived in Australia in August 2013 (almost two years later), and that he required surgery [in] 2014 as a consequence.  The applicant did not mention any problems with [that particular body part] in his initial statement of claims lodged with his application in October 2013.  He travelled to [Country 1] for four weeks in April 2012 and could have sought treatment there for any [injuries] at that time.  The medical records he has provided subsequently indicate that he had [surgery] on [that particular body part] in 2014.  There is nothing in any of the medical reports to indicate that the [condition requiring surgery] occurred as a consequence of [injuries] sustained due to him having been assaulted in 2011.

12. While the applicant claimed this incident occurred in [December] 2011, he did not claim that any other incidents of violence occurred.  He said he tried to manage everything and be polite with the Khatm-e-Nubawat members.  He said he stayed at home for 7-8 weeks after the incident as he could not walk due to stiffness and was really upset and stressed so he went to [Country 1] for four weeks in April 2012.  He said when he returned the same thing started so his father and brother advised him to hand over to someone else or close the business as it would be difficult and dangerous for him.  The Tribunal queried why the Khatm-e-Nubawat people had not continued to go to the business and demand money from his brother or his father.  He said they limited their activities, he left Sialkot and lived with his in-laws in Faisalabad.  The Tribunal queried the applicant that he said his brother and father kept the business open for another 16 months and asked why the Khatm-e-Nubawat members would not have continued to target the business whether he was there or not.  He reiterated that they limited their activities, especially his brother, and dealings were through their workers.  The Tribunal finds these arguments to be unconvincing and considers that if Khatm-e-Nubawat members were prepared [attack him with a weapon] to seek payments from the business and suffered no consequences (such as being reported to the police) from such violent actions, they would have continued to target the business and those associated with it.

1. The Tribunal asked the applicant why he travelled to Australia in August 2013, when he had never visited Australia before and when he had a valid visa for [Country 1] and could have sought protection there either when he travelled to [Country 1] in April 2012 or subsequently.  In his earlier statements the applicant indicated that when he went to [Country 1] in April 2012 it was for his ‘mental peace and recovery of his health’.  At that time he had every intention to continue his business in Pakistan.  It was claimed that his situation escalated on his return to Pakistan.  The applicant and his representative have submitted argument that while the applicant has a visa for entry to [Country 1] until 2018, the possibility of him now being able to enter [Country 1], after having sought protection in Australia, is diminished.  However, the applicant has not explained why, if the situation in Pakistan deteriorated after his return there in May 2012, he decided to seek a visa for and come to Australia (a place he had never travelled to previously) in 2014, rather than return to [Country 1] and seek protection there.

2. When questioned about these matters the applicant said he wanted to check what the market is in Australia and his travel to Australia was not related to him being depressed.   He said while he was in Australia his brother called him and said the situation is really bad now and he should not return.  The Tribunal queried the applicant that he had indicated that he was winding the business down after his return from [Country 1] in May 2012 and asked why he would be checking the market in Australia in August 2013.  He said he was thinking forward and did not think the situation would be really bad and that ‘they’ would follow us until the end.  When pressed that this seems inconsistent with his previous evidence regarding how bad the situation was from 2011, the applicant commented that that is true but he wanted to keep thinking positively and he was keeping options in mind.  When asked he said no-one suggested he go to Australia but his friends said the market in Australia is really good and he should go there, get refreshed and look at the market there.  The Tribunal pressed the applicant that this is very different to his statement where he commented that he completely lost interest in the business.  He replied that it was in his mind to save the business but when he came to Australia the situation completely changed.  The Tribunal asked him what changed.  He said his brother did not tell him the details but was really stressed and said they are looking for us.  The Tribunal queried the applicant that there was nothing in his statement indicating that the situation had become much worse after he travelled to Australia.  He said he was really upset and not sure what to write in his statement.  The Tribunal finds the applicant’s evidence on this issue to be vague, inconsistent and unconvincing.  The Tribunal considers that if the situation was bad in Pakistan on his return there in May 2012 he could have returned to [Country 1] either immediately or after a short period of winding-down the business (or could have left it to his brother to wind-down the business).  The Tribunal finds his statements regarding wishing to explore business opportunities in Australia in August 2013 to be totally at odds with his previous evidence.  The Tribunal also finds his comments that he did not come to Australia to seek protection but did so after arrival because his brother called him to say the situation had become much worse is inconsistent with his original claims, which make no mention of this.  He also was not able to provide any detail whatsoever at the hearing to indicate in what way the situation had become worse in August 2013.  The applicant also could not explain why he and his family members did not experience further acts of intimidation and violence from Khatm-e-Nubawat members from January 2012 until he came to Australia in August 2013, other than commenting that he, his wife and children moved to Faisalabad and only visited Sialkot occasionally, that while his brother was playing an active role in the business his brother and father kept a low profile, and that they changed their phone numbers.  The applicant claimed that the business continued to operate from the same premises, albeit on a lesser scale, until August 2013.  The Tribunal considers that if Khatm-e-Nubawat members were highly motivated to target him and the business, as the applicant has claimed in his evidence, they would have continued to actively harass, threaten and attack those present at the business premises and could have obtained new phone details and continued to threaten, harass and attack those associated with the business, particularly the applicant’s brother if he was taking the most active role, but also the applicant, notwithstanding him having relocated to Faisalabad and only undertaking occasional visits to Sialkot.  Indeed, the applicant has claimed that if he returned to Pakistan these people would locate him and that he would not be safe in Faisalabad.   For the reasons outlined above the Tribunal concludes that the applicant has fabricated his evidence regarding events between May 2012 and the end of 2014. 

3. The applicant claims that the brother who was his business partner until 2013 has now gone to [Country 2] where he has sought protection.  He could not say when his brother departed other than it was after the applicant came to Australia, and said he did not know where in [Country 2] he is living.  The Tribunal cannot verify this claim but found the applicant’s evidence in relation to his family members generally to be vague and misleading.  When the Tribunal asked the applicant if his wife had experienced any issues since he has been gone he claimed that he had not spoken to his wife for over six months.  When asked why this was the case he said she does not have a phone and she calls him when she wants to.  The applicant’s representative indicated that he found this comment difficult to believe.  When asked if his wife had experienced any problems in Faisalabad the applicant replied they don’t tell me.  The Tribunal does not accept that the applicant is not in contact with his wife and that his wife or other family members would not tell him if his wife was experiencing problems in Pakistan.  When asked about his other brother, the applicant said he has not spoken with him for over a year and that his brother does not have his number.  He said does not know where this brother is living or what he is doing.  The Tribunal asked the applicant if he is close to this brother.  He replied indicating that that they are separate now and therefore are no longer close.  The Tribunal found the applicant’s evidence in relation to his contact with his wife and brothers to be unconvincing.  The Tribunal considers that the applicant has deliberately sought to indicate that he is not in contact with family members to avoid questioning regarding their circumstances.  The Tribunal considers both that these family members are not experiencing difficulties in Pakistan and that the applicant’s comments that he is not in contact with them reflects negatively on his credibility.

4. Considering the totality of the evidence and its findings on the applicant’s claims detailed above, the Tribunal concludes that while it accepts the applicant is a Shia Muslim and has worked for a time as a businessman in a business in Pakistan involved with [a particular field], the Tribunal does not accept that the applicant established and ran his own business in this field in partnership with his brothers/brother from 2000 until 2013.  The Tribunal does not accept that the applicant was targeted by members of Khatm-e-Nubawat in 2011 because of the success of his business activities and does not accept that he was abused and/or threatened by members of Khatm-e-Nubawat because he is Shia or told that he must pay money to their organisation if he wishes to stay in business in Sialkot.  The Tribunal does not accept that the applicant ever paid money to members of Khatm-e-Nubawat.  The Tribunal does not accept that the applicant was ever assaulted by members of Khatm-e-Nubawat, either being beaten causing damage to [a part of his body] or being attacked with [a weapon].  The Tribunal does not accept that after he came to Australia the situation became much worse in Pakistan and his brother called him to tell him this.  Given these findings the Tribunal concludes that the applicant is not a credible witness.  The Tribunal considered the comments by the applicant’s representative suggesting that given the applicant’s background as a successful businessman and his having a wide and [children] in Pakistan that he has not seen for over three years the applicant would have no reason to remain in Australia if he had not experienced serious harm in Pakistan.  The Tribunal does not know the applicant’s motivation for remaining in and seeking protection in Australia but is satisfied, for the reasons detailed above, that the applicant has fabricated the key elements of his claims and does not face a real chance of persecution amounting to serious harm from members of Khatm-e-Nubawat or other Sunni extremists or their supporters due to his Shia religion or his status as a Shia businessman.

5. Having made the findings above the Tribunal has considered the risk of serious harm that the applicant would face should he return to Pakistan and whether there is a real chance that he would suffer persecution amounting to serious harm as a consequence of his Shia religion or his status as a Shia businessman.  Given the findings above the Tribunal does not accept that there is a real chance the applicant would be targeted for harm by members of Khatm-e-Nubawat should he return to Pakistan in the foreseeable future.  The Tribunal has previously found that the applicant would not face a real risk of serious harm solely on the basis of his being a Shia Muslim if he returned to Pakistan.  In considering the chance of serious harm to the applicant on the basis of his being a Shia businessman the Tribunal has taken into account the DFAT advice that there is a moderate threat of sectarian violence for prominent Shias such as high-profile professionals.  DFAT comments that in 2015 sectarian attacks against Shias in Sindh province, where the capital Karachi historically has experienced high levels of generalised violence because of rival political, business and criminal interests, included target killings of high-profile Shias such as doctors, lawyers, teachers and political and religious leaders.  DFAT notes however that the number of fatalities from sectarian violence is relatively low in proportion to Karachi’s large population and assesses that overall there is a low level of sectarian violence in Karachi.   DFAT also advises credible sources have told it that activities by paramilitary Rangers in Karachi since September 2013 have targeted and dismantled or badly damaged prominent sectarian and militant groups in Karachi, including SSP, ASWJ and LeJ.  DFAT comments that official sources indicate there has been an 80 per cent reduction in target killings and a 93 per cent reduction in kidnappings in Karachi since these operations commenced.

6. DFAT comments that levels of generalised and sectarian violence remain lower in Punjab than other parts of Pakistan.  DFAT states that credible sources have told DFAT that the Punjab capital Lahore has experienced a 20-25 per cent reduction in the rates of ‘crime against persons’, including kidnapping, since the commencement of Operation Zarb-e-Azb and implementation of the National Action Plan.  While the applicant and his representative disputed the accuracy of the DFAT advice, the material that they have provided does not counter the DFAT assessments.  While DFAT makes clear that organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan [17] DFAT advice does not indicate that Shia businessmen are more vulnerable to this kind of crime or are targeted because of their Shia religion.  DFAT did not include businessmen among the ‘prominent Shias’ who it assesses are at higher (moderate) risk of sectarian violence.  The applicant and his representative have not provided any material among the documents they provided to the Department and the Tribunal indicating that there is a real chance of serious harm to Shia businessmen in Punjab.  They made reference to a bombing at a Shia mosque in which at least 30 people were killed.  This incident is verified by press reports and is included on the SATP list of incidents in which Shias have been killed in Pakistan since 2001.  However, this incident occurred on 1 October 2004.  A BBC News report of this incident includes the comment that ‘…correspondents says (sic) Sialkot is not a known centre for sectarian violence’[18].  As discussed with the applicant at the hearing, the SATP indicates that there have been few incidents of sectarian violence in Punjab since 2014 (particularly when Rawalpindi is excluded).  When looking at the full year data for 2016, which is now available, only two incidents are listed in Punjab, involving 1 death and 11 persons injured.  While one of these incidents was in Sialkot district, in which 10 people were injured when ASWJ militants opened fire at an Ashura procession, there were no reported incidents in Punjab where Shia businessmen were killed.  This is also the case for 2014 and 2015 (in 2014 there is a record of a prominent doctor (also President of the district Majalis Wahdat-e-Muslimeen, a Shia political organisation) having been killed in Rajanpur Punjab, and in 2015 there is a record of a lawyer and his two nephews having been killed in Rawalpindi district).  While the Tribunal accepts that if the applicant returned to his home area in Punjab province he would likely resume business activities, based on consideration of the relevant country information and the Tribunal’s assessment of the applicant’s past circumstances, the Tribunal finds that he would not face a real chance of persecution amounting to serious harm from Khatm-e-Nubawat, SSP, ASWJ, LeJ or other Sunni extremists groups and/or their supporters, either due to his Shia religion or his status as a Shia businessman, should he return to Pakistan in the foreseeable future.

   Conclusion – refugee grounds

   [17] DFAT Country Information Report, Pakistan, 15 January 2016, section 2.31.

   [18] 2004, BBC News, Pakistan mosque blast sparks riot, 2 October. Sourced at <>

   Considering the applicant’s claims both individually and cumulatively, The Tribunal concludes that the applicant does not have a well-founded fear of persecution from Sunni extremist groups including Khatm-e-Nubawat, SSP, ASWJ, LeJ and/or their sympathisers due to his Shia Muslim faith or his status as a Shia businessman, or for any other Convention reason, if he returned to Pakistan now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).

   Complementary protection

7. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether 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 as defined in subsection 36(2A) of the Act.

8. For the reasons set out above, the Tribunal has not accepted there is a real chance that the applicant will face serious harm from Sunni extremist groups including Khatm-e-Nubawat, SSP, ASWJ, LeJ and/or their sympathisers due to his Shia Muslim faith or his status as a Shia businessman, or for any other Convention reason, if he returned to Pakistan now or in the reasonably foreseeable future.  The Tribunal has taken into consideration the DFAT advice regarding the prevalence of organised and violent crime in Pakistan but gives weight to DFAT’s assessment that levels of both generalised and sectarian violence remain lower in Punjab province than in other parts of Pakistan (which includes areas such as Gilgit-Baltistan where DFAT assessed there is a low level of generalised violence).  Having regard to the findings of fact set out above, and the DFAT advice regarding the level of generalised violence in the applicant’s home province of Punjab, the Tribunal has also found that the risk of significant harm to the applicant as a consequence of his activities in the Shia community, his activities as a Shia businessman, and in the context of generalised violence in Punjab province, including from criminal elements, is remote and not real.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[19]  It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from Sunni extremist groups including Khatm-e-Nubawat, SSP, ASWJ, LeJ, and/or their sympathisers, government forces, criminal elements or anyone else as part of the generalised or sectarian violence, or for any other reason, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

   [19] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

9. On the material before it, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

   CONCLUSION

10. 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).

11. 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).

12. 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

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

    Paul Windsor
    Member