1501662 (Refugee)

[2016] AATA 4012

1501662 (Refugee) [2016] AATA 4012 (15 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501662

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:15 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 June 2016 at 3:34pm

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

BACKGROUND AND APPLICATION FOR REVIEW

1. The applicant is a citizen of Pakistan. He is aged in his mid [age]. The applicant lived in [Country 1] for approximately [number] years prior to his arrival in Australia. He first arrived in Australia [in] September 2007 on a [temporary] visa which ceased in December 2007. He was granted a Bridging visa [in] October 2008 in conjunction with his first application for a Protection visa to the Department of Immigration. The Protection visa application was refused by the Department [in] January 2009 and the Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 18 May 2009. Applications to the Federal Circuit Court and to the Minister requesting intervention were unsuccessful.

2. Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 (see below), the applicant made a further application for a Protection visa [in] September 2012. The applicant claimed that as an active member of the Shia community who is regularly involved in Shia activities, as [occupation] and someone who has lived in a Western country for a long time, he would be considered an infidel and a Western spy and would face torture and cruel treatment or punishment if he was returned to Pakistan.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] January 2015. The delegate accepted that the applicant is a practising Shia Muslim who worked in [Country 1] for [number] years and his work included [occupation]. The delegate did not accept that the applicant was harmed for his past activities or that he had a religious profile or a public profile as [occupation]. Although the delegate accepted that the applicant is a committed and practising Shia Muslim, the delegate was not satisfied that there was a real risk or a real chance that the applicant would suffer serious or significant harm in Pakistan.

4. 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 delegate assessed the applicant against both the Refugees Convention and the Complementary Protection provisions. For the reasons discussed below, the Tribunal has assessed the applicant only against the Complementary Protection provisions.

   RELEVANT LAW

5. Section 48A imposes a bar on a non citizen making a further application for a Protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion.

6. As indicated above, the applicant has previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because the applicant is considered ‘SZGIZ-affected’ as he has not left Australia since the final determination of his previous Protection visa application which preceded the Complementary Protection provisions. As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa) and (c).

7. The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected 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.

8. Subsections 36(2)(c) provides an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a 'member of the same family unit' as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

   CLAIMS AND EVIDENCE

   Application to the Department

9. When lodging the application to the Department, the applicant indicated that he is from [a location] in Punjab. He indicated that he speaks, reads and writes Punjabi, Urdu and English. The applicant also indicated that he is a Shia Muslim and he was married [in] 1996. He stated on the application form that he lived in [Country 1] between [1990] and [2007]. He indicated that he travelled to [Country 2] between [July] 2006 and [July] 2006 for a visit. The applicant also stated that he had [number] years of education in Pakistan and he was employed as a “[occupation]” in [Country 1].

10. The applicant also indicated on the application form that his wife [and children] reside in Pakistan.  

11. In response to a question on the application form as to what he fears will happen to him if he returns to Pakistan, the applicant stated that he is an active member of the Shia community and he regularly attends Shia mosques for prayers and Shia functions. He stated that due to his commitment to his religion and involvement in the Shia community he fears he will be particularly targeted by Sunni Islamic fundamentalists. He states that the country information indicates that the situation in Pakistan has worsened for Shia Muslims and he fears he will be targeted if he returns to Pakistan.

12. The applicant also states that he is [occupation] and worked as [occupation] in foreign countries. The Sunni Islamic fundamentalists including the Taliban consider [people with this occupation] are infidels and enemies of Islam. They target people whom they consider have violated strict Islamic rules. He fears he will be targeted due to his profession as [occupation] because he will be considered to have violated Islamic values.

13. The applicant also stated that he has stayed in a Western country for a lengthy period and adapted to the culture and values of the Western country. He fears he will be considered an infidel and a western spy due to his long and continued stay in a western country. Accordingly, he fears that he will face significant harm including torture and cruel treatment in Pakistan. He fears he will not receive adequate state protection in Pakistan because of the worsening country situation and the influence of Islamic fundamentalists. He fears that he will be targeted because they have a significant influence in Pakistan. The applicant states that he seeks protection on the Complementary Protection grounds.

14. In an accompanying submission, the representative submitted that a “detailed statutory declaration” would be provided “shortly”. However, no further statements or statutory declarations were provided.

15. The applicant attended an interview with the delegate [in] August 2014. The Tribunal has listened to the CD Rom recording of the interview and the relevant evidence is set out below.

    Application for review

16. The applicant appeared before the Tribunal on 10 June 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Are there 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?

17. In considering whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he is returned to Pakistan, the Tribunal has had regard to the applicant’s written claims and his oral evidence to the Department and the Tribunal. The Tribunal has also had regard to relevant independent evidence, including the Department of Foreign Affairs and Trade’s most recent Country Report on Pakistan, dated 15 January 2016 and its most recent Thematic Report on Shias in Pakistan, dated 15 January 2016.

18. Having considered all of that evidence, although the Tribunal accepts that the applicant is a Shia Muslim and a Pakistani national, the Tribunal does not accept that the applicant has given a truthful account of his reasons for seeking Australia’s protection. The Tribunal found the applicant’s evidence during the hearing to be vague and unpersuasive, and he had to be prompted about specific aspects of his claims which were set out in his application to the Department. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicant’s experiences in Pakistan

19. The applicant’s evidence to the Department and the Tribunal was that his wife and [children] live [in] the Punjab, and he has [siblings] who live in different places throughout Pakistan.  The applicant lived in [Country 1] between 1999 and 2007 and he then came directly from [Country 1] to Australia in September 2007. He told the Tribunal that whilst he was in [Country 1] he returned to Pakistan every two to three years. Prior to his travel to Australia he had visited his wife and children in Pakistan one to two months earlier. The applicant stated that he was [occupation] in [Country 1], which involved [details deleted].

20. When asked by the Tribunal the purpose of his visit to Australia in 2007, the applicant stated that it was because there was a danger to his life. The applicant had decided he wanted to remain permanently in Australia and for that reason he left [Country 1]. When asked why he could not live in Pakistan, the applicant stated that it was because his father was a prominent member of the Shia community. When asked what particular involvement his father had in the Shia community, the applicant stated that he was young at the time of his father’s involvement and he did not know any details, and his father would “just organise things”. When asked if he could be more specific about his father’s activities and what he did which caused him to be targeted, the applicant stated that they were attacked on particular days. The applicant stated that Shias could be attacked at any time, including when they were getting on and off buses. They were killed only because they were Shias. When asked again about his father’s involvement and what caused him to be targeted, the applicant stated that he could not say what it was he did specifically. When asked what harm he had suffered in Pakistan, the applicant stated that he was attacked twice. The first time he was targeted was before he left for [Country 1]. When asked when that occurred, the applicant stated that it was when he was a student and was about 18 or 19 years of age. The applicant’s father then told him he should go to [Country 1]. The first attack was when his [limb] was broken. The second attack was [when] he was beaten with iron rods and required a [body part] operation. The second attack occurred when he went back to Pakistan after two or three years of living in [Country 1]. The applicant had [surgery] at that time. When advised by the Tribunal that there was limited evidence of fighting at a community level between Shias and Sunnis in Punjab, the applicant stated that the people who were attacking them were “political people” who had associations with political organisations.

21. During the Department interview, the applicant also claimed that he is suspected of funding a Shia terrorist group and although he has been away from Pakistan for a long time he will still be considered to have been associated with this group. The applicant also stated that he has financially supported the promotion of Shia activities, and from a Sunni extremist perspective promoting the Shia religion will result in him being targeted. The applicant told the delegate during the interview that the school his children are attending school is under the control of an Islamic terrorist organisation.

22. When asked by the Department and the Tribunal why he did not seek protection in [Country 2], the applicant stated that he saw people handing out information in relation to Islamic charities.  He did not seek protection in [Country 2] because he believed they were associated with Islamic fundamentalist groups. The applicant now realises it was a “mistake” to believe the charities were associated with Islamic fundamentalist groups. The applicant also told the Tribunal that he stayed with a friend whilst in [Country 2] and he heard that there were many Muslim organisations. The applicant wanted to get away from such people and he learned that people were going door to door distributing pamphlets about Islamic organisations. The representative submitted during the interview that in [Country 2] there are some parts which are considered to be “Islamic zones” and have enforced a “sharia zone”. This may have led the applicant to believe that he may be targeted for harm in [Country 2] and cause problems for him. It was submitted that this is a justifiable reason for not seeking protection in [Country 2].

23. When asked by the Tribunal what he fears would happen if he returns to Pakistan, the applicant stated that previously there was only a member of previously who was attacking his family, but now there are Islamic organisations such as Sipah-e-Sabah. When asked why these people would have any specific interest in him, the applicant stated that it is because he is Shia. The Tribunal advised the applicant that his evidence about his father’s involvement in the Shia community is very vague and he has not been able to point to any particular reason as to why they would have any interest in him. When asked his involvement in the Shia community, the applicant eventually stated, after significant questioning, that he has never attended a Shia mosque in Australia but he goes to the Sunni mosque sometimes and his friends celebrate Muharram together. When asked how they celebrate Muharram, the applicant stated that they read different things and talk about books and scholars. The applicant was unable to name any books or scholars and eventually stated that they just read out translations of the prophet. The applicant told the Tribunal that there was no Shia mosque in [Town 1] and he does not have the money to travel to [City 1]. When the Tribunal advised the applicant that it does not appear that his claims about significant involvement in the Shia community are true, the applicant again referred to his difficulty in having such involvement whilst in [Town 1].  

24. The Tribunal has considered the applicant’s claims and evidence set out above to determine whether there is a real risk he will suffer significant harm if he is returned from Pakistan to Australia. The Tribunal is firstly not satisfied that the applicant’s circumstances support his claims to have suffered harm or to fear harm in Pakistan because he is a Shia. The applicant’s evidence to the Tribunal indicates that whilst living in [Country 1] for some[number] years from 1990 to 2007 he married in 1996 and he and his wife subsequently had [children] together. In the Tribunal’s view, these circumstances clearly required his presence on regular occasions in Pakistan. Whilst the Tribunal accepts that the applicant would have wished to maintain contact with his wife and children, the Tribunal is not satisfied that his actions in returning to Pakistan on what must have been several occasions from 1999 to 2007 are consistent with his claims to have suffered harm and to fear further harm in Pakistan.

25. The Tribunal also considers that the applicant’s failure to seek protection in [Country 2] in 2006 is not consistent with his claims to fear significant harm in Pakistan. The Tribunal does not accept that the applicant’s explanation for why he decided not to seek protection in [Country 2], which has an established humanitarian and refugee program. Nor does the Tribunal accept the submission in relation to Islamic or sharia areas in [Country 2]. The Tribunal considers that had the applicant feared harm in Pakistan that he would have made considerable inquiries about remaining in [Country 2], and those inquiries would have revealed that he would be able to have his claims for protection assessed and he would be able to receive the protection of [Country 2] if his claims were determined to be genuine. 

26. As indicated above, although the applicant made some brief claims in his written application, he had difficulty expanding on those claims when asked at the hearing, and despite considerable questioning his evidence as to his experiences in Pakistan because he is a Shia remained vague and unpersuasive. The Tribunal does not accept that the applicant would have such limited knowledge of his father’s involvement in the Shia community if it resulted in the applicant being targeted by Sunnis. The Tribunal is not satisfied that the applicant’s father was prominent in the Shia community or that the applicant was subject to harm [in] Punjab because he is Shia. As discussed during the hearing, although there is considerable evidence of Shias being targeted by terrorist groups the independent evidence generally indicates that Shias and Sunnis have co-existed peacefully in Punjab where Shia communities are generally integrated and live side by side. The independent evidence also indicates that there are significant numbers of Shias in Punjab, which is the most populous province in Pakistan.[1]

    [1] Department of Foreign Affairs and Trade, 2013, Country Information Report: Pakistan, 29 November; and DFAT Thematic Report, 2013, Shias in Pakistan, 18 December.

27. The Tribunal also does not accept that the applicant was an “active member of the Shia community” as he claimed in the application form. The Tribunal accepts that the applicant has resided in [Town 1] since his arrival in Australia and it would have been more difficult for him to be involved in the Shia community and to attend a Shia mosque than if he had resided in a large urban area such as [City 1]. However, the applicant’s own evidence indicates that he has never attended a Shia mosque in the nine years he has lived in Australia. The applicant’s evidence about his participation in Muharram, an important religious occasion for Shia Muslims,[2] was also unpersuasive. The Tribunal considers that had the applicant been active and involved in the Shia community in Pakistan that he would have had significantly more involvement in the Shia community in Australia than is indicated by his own evidence, and he would have at least attended a Shia mosque or participated to a greater extent in Muharram.

    [2] See Jam-e-Masjid Islamic Centre website – and

1. The Tribunal is not satisfied, having considered the applicant’s claims relating to his Shia religion, that he was targeted or harmed by Sunnis or Islamic fundamentalists or persons who were “political people” because he is a Shia or that he had any particular type of profile in Pakistan, above that of an ordinary member of the Shia community. The Tribunal also does not accept that the applicant supported banned Shia groups or that he financially supported Shia activities or was ever considered to be supporting Shia groups or banned Shia groups, which include the Tehreek-e-Jafaria (TJP), Tehreek-e-Nifaz-e-Fiqh-e-Jafaria Moosavi (TNFJ) and Sepah-e-Muhammad Pakistan (SMP). Nor does the Tribunal accept the applicant’s other claims that his children were forced to attend specific Islamic schools. The Tribunal does not accept, therefore, that the applicant has suffered harm in Pakistan because of his Shia religion. The Tribunal does not accept that this is the reason the applicant went to [Country 1] in 1990 or the reason he came to Australia in 2007.

   The applicant’s future return to Pakistan

2. The applicant has claimed to both the Department and the Tribunal that he would have continuing difficulties in Pakistan because of his Shia faith. When asked why he would be targeted for harm because of his Shia religion, the applicant stated that the Sunni fundamentalists stop buses, single out Shias and kill them. The applicant believes that the situation is worsening The applicant stated that in south Punjab the Saudi Arabians are providing funding to Sunni groups and those who are taking the buses were mainly in North Waziristan but now it has spread all over the country. The Tribunal discussed the country information with the applicant and advised him that there are very few reports of ordinary Shias being targeted in Punjab. The applicant stated that there are restrictions on reporting and the government in Punjab suppresses reports of Shias being killed. During the Department interview, the representative submitted that Shias are the largest persecuted minority group and there are targeted killings against Shias who have a profile. The representative acknowledged that although not all Shias are targeted, the applicant has an adverse profile from Sunni extremists but there is a worsening situation for Shias in Pakistan. The representative submitted that the applicant has a real risk of suffering harm not only because he is a Shia, but also because of his profile and all of the major cities in Pakistan have a significant presence of the Taliban which makes it increasingly dangerous for Shias in Pakistan.

3. As stated above, the Tribunal has some concerns about the applicant’s vague evidence about his involvement in the Shia faith whilst in Australia, but has accepted that the applicant is a Shia. The Tribunal has also not accepted that he had any particular profile in his community in Pakistan or that he was considered to have been supporting Shia groups or the community. The Tribunal has not accepted that the applicant was specifically targeted or sought in Pakistan, where he has not lived on a permanent basis for some 26 years. However, having accepted that the applicant is a Shia, the Tribunal has considered whether his religion will result in a real risk that he will suffer significant harm upon his return to Pakistan.

4. The Tribunal accepts that the most recent DFAT report confirms that the “most potent militant group in Pakistan remains the TTP, a loose network of Sunni militant groups which have splintered since the commencement of Operation Zarb-e-Azb in 2013.”[3] The Tribunal also accepts that Shias remain a target for Islamic fundamentalist groups in various parts of Pakistan. DFAT reports that sectarian attacks have historically targeted individuals, places of worship, shrines and religious schools. Although the violence has affected all religious and sectarian groups, Shias represent a higher proportion of those attacked and killed. According to CRSS for example, 58 per cent of fatalities from sectarian violence (122 of 212 deaths) from January-June 2015 were Shia. The majority of the casualties were from large scale attacks rather than target killings. DFAT assesses that there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for Shias such as high profile Shia professionals, mainly in Sindh province. 

   [3] Department of Foreign Affairs and Trade 2016, Country Report: Pakistan, 15 January, p. 7.

5. As discussed with the applicant during the hearing, despite continuing evidence of attacks on Shias, the independent evidence indicates that the Shia population is dispersed throughout Pakistan and comprises approximately 20 per cent of the population of approximately 190 million people. Large Shia populations live in urban centres throughout Pakistan, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sarghoda. Although some Shias live in enclaves in these cities, “Shia and Sunni communities are generally well integrated”.[4] Shias are well represented among high level professionals in Pakistan such as doctors and lawyers and DFAT assesses that Shias do not suffer greater economic disadvantage than other groups in Pakistan.[5] As indicated above, reports have also indicated a significant reduction in terrorist attacks against Shias. The DFAT report on Shias in Pakistan states that “credible sources” have reported a 75 per cent reduction in the number of terrorist attacks throughout Pakistan from September 2014 to September 2015. Another source, the Center for Research and Security Studies (CRSS) said there were 77 per cent less target killings and 57 per cent less terrorist attacks in the first six months of 2015 than in the corresponding period in 2014 (there were 411 target killings and 150 terrorist attacks over this period in 2015, compared with 1,242 target killings and 346 terrorist attacks over the same period in 2014. CRSS and others attribute the decline to Operation Zarb-e-Azb, as well as the 20 point National Action Plan on counter-terrorism.[6] DFAT also reports that the security situation varies between Pakistan’s provinces and autonomous regions and Punjab remains relatively “free of sectarian and generalised violence”. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA and varies depending on the location of Pakistan military operations. Additionally, since the commencement of Operation Zarb-e-Azb Ranger operations have substantially reduced the level of serious crime throughout Pakistan. Although Shias are more prominent during Ashura processions, heightened state protection measures during these celebrations mitigate the threats associated with this greater exposure.[7]

   [4] Department of Foreign Affairs and Trade 2016, Thematic Report: Shias in Pakistan, 15 January, p.4.

   [5] Department of Foreign Affairs and Trade 2016, Thematic Report: Shias in Pakistan, 15 January, p.7.

   [6] Department of Foreign Affairs and Trade 2016, Thematic Report: Shias in Pakistan, 15 January, p.9.

   [7] Department of Foreign Affairs and Trade 2016, Thematic Report: Shias in Pakistan, 15 January, pp. 9 to 10.

6. In relation to the specific situation in the Punjab, DFAT reports that militant attacks and sectarian tensions are generally higher in parts of Punjab where madrassa and militant networks are strongest. These tensions also manifest in greater levels of segregation in some cities, but in larger cities Shia and Sunnis are generally more integrated. DFAT further reports that “according to credible sources” Lahore has experienced a 20 to 25 per cent reduction in crimes against persons’ including kidnapping since the commencement of Operation Zarb-e-Azb and the 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 South Asian Terrorism Portal, a total of 16 Shias died in three attacks in Punjab 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.  DFAT has reported that there were no Shia deaths from sectarian violence in Lahore in 2015.[8]

   [8] Department of Foreign Affairs and Trade 2016, Thematic Report: Shias in Pakistan, 15 January,p.11.

7. The Tribunal accepts, on the basis of the above, that there remain some risks for all Shias throughout Pakistan. The Tribunal also accepts some attacks against Shias in Punjab, but does not accept the applicant’s claims about the restrictions on reports of Shias killed in Punjab. The Tribunal is satisfied that it can rely on the evidence from DFAT and other organisations which indicates that there were relatively few major sectarian attacks in recent years, despite Punjab being the most populated province. The Tribunal does not accept that the applicant had any adverse profile at the time he left Pakistan and does not accept he will have any adverse profile upon his return or that he will be sought by the Taliban or any other Islamic groups or individuals. The Tribunal does not accept that the applicant will have to modify his religious practices upon his return to Pakistan or that his involvement in the Shia religion will result in a real risk that he will suffer significant harm. Taking into account the size of the Shia community, the low number of attacks and violence against Shias in the Punjab, as well as the evidence indicating that in Punjab that Shias and Sunnis generally live together without any significant issues, the Tribunal is not satisfied that there is a real risk that the applicant would suffer significant harm because he is a Shia.

8. The Tribunal has considered the applicant’s other claims regarding his fear of harm in Pakistan. When asked by the Tribunal whether there is any other reason fear he fears harm in Pakistan, apart from his involvement in the Shia faith, the applicant stated that is the only reason. The Tribunal reminded the applicant that he had also claimed that because he is [occupation] he would be considered an infidel. The applicant then stated that is his belief. In response to the Tribunal’s comments that this does not appear consistent with the evidence which indicates there are numerous places selling Western [products] and he was [details deleted], the applicant stated that he is uncertain what would happen to him as a result of this reason. The Tribunal reminded the applicant, when he again indicated that he had no further claims, that he had claimed to the Department that he will be targeted due to his lengthy stay in a Western country. The applicant again stated that this is his belief and people might think that he is like local Afghans who left and were supported by westerners. The Tribunal advised the applicant that the report from the Department of Foreign Affairs and Trade does not indicate that persons who have returned to Pakistan after living in Western countries for extended periods will suffer violence or harm upon their return to Pakistan.

9. Having considered the applicant’s other claims, the Tribunal is not satisfied that there is a real risk that the applicant will be harmed as a result of his previous experience as [occupation].  As indicated above, the applicant appeared not to recall this claim until reminded of it by the Tribunal during the hearing. The applicant also did not dispute that he was [details of occupation deleted] and that this type of [product] is freely available in Pakistan, as evidenced by numerous advertisements and shops selling this type of [product] on the Internet. The Tribunal is not satisfied that there is any evidence that [people in this occupation] or such persons are being targeted or harmed by Islamic fundamentalist groups or individuals in Pakistan. The Tribunal is not satisfied, therefore, that there is a real risk that the applicant will suffer significant harm because of his employment as [occupation]. As also discussed with the applicant during the hearing, the most recent DFAT report states that “many Pakistanis have relatives in Western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to violence or discrimination on the basis of having spent time abroad. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm because of his time spent in a Western country. Accordingly, the Tribunal is not satisfied that the applicant will be considered an infidel or a Western spy as a result of his time in the West, or because he is a Shia or because he is [occupation], when these claims are considered individually and cumulatively.

10. The Tribunal has accepted that the applicant is a Shia Muslim, but has not accepted that he or his family had any particular profile or that he suffered harm because of his Shia religion. The Tribunal has also not accepted the applicant’s other claims or that he has or will been specifically targeted by Islamic extremists or Sunni Muslims. Nor has the Tribunal accepted there is a real risk that the applicant will suffer significant harm because of his [work] in [Country 1], even if he continued to work in this area in Pakistan. The Tribunal has also not accepted that there is a real risk he will suffer significant harm because of his extended presence in the West. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk he will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.  

    CONCLUSIONS

11. 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.

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

14. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Complementary protection criterion

15. The Complementary Protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.