1512847 (Refugee)

[2018] AATA 3169

1512847 (Refugee) [2018] AATA 3169 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512847

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Mara Moustafine

DATE:2 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 02 July 2018 at 1:10pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Shia – Religious reciter – Sunni extremist groups – threats of killing – Fraudulent document – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 424AA, 438, 499
Migration Regulations 1994, Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicants are husband, wife, [and] their [children]. They are citizens of Pakistan. The first named applicant (the applicant) arrived in Australia on 20 March 2011, together with the second named applicant (the applicant wife) and the third named [applicant]. They applied for Protection visas on 5 February 2013. The fourth named [applicant] was born in Australia on [date] and was subsequently added to the application on 31 July 2014.

3. Only the applicant has made specific claims for protection. His wife and children are relying on their membership of his family.

   Evidence before the Department

   Protection Visa Application

4. In his protection visa application form and attached statement, the applicant made the following claims.

   a.He is a Shia Muslim born in Rawalpindi in [year]. He graduated with a [specified qualification] ([year]) and worked as [an occupation] in [Business 1] in Islamabad between [year] and March 2011 prior to coming to Australia.

   b.Following in the footsteps of his [relatives], he became a famous child reciter and used to recite in various Shia imambarghas (places of worship) around Rawalpindi in the holy month of Moharram. While a school and college student, he [also performed related tasks]. 

   c.While [office bearer] of the Imamia Student Organization (ISO) at [his] College in [year], he represented Shia students and organised Shia religious events. This led to many altercations with students from opposition Sunni organizations, who beat him badly and tortured him on a few occasions to stop him organising Shia events.

   d.From 2000 he was a member of various Shia organisations and in 2006 became an active member of [an] Imambargah. He was a famous religious reciter in Pakistan, where he recited in various Majalis all over the country.

   e.He is devout to Shia rituals, including Zangeerzani self-flagellation to commemorate the suffering of the Prophet’s family.

   f.Friends and relatives, with whom he recited in Pakistan, have been killed by Sunni extremist groups, including the Pakistani Taliban, Lashkar-e-Jhangvi (LEJ), Sipah-e-Sahaba (SSP), between 2011 and 2013. Because of this, he fears that he will be killed if he returns to Pakistan. Since coming to Australia, he has actively participated in Shia ceremonies at various imambargahs in Sydney.

   g.As the terrorist network is very strong in Pakistan, they have all the information about him and his family and they will definitely kill him if he goes back.

   Protection Visa Interview

5. The applicants attended an interview with the delegate on 19 June 2013, a summary of which is contained in the Department’s decision record. The Tribunal has listened to a recording of the interview. Where relevant the applicant’s oral evidence to the delegate is discussed below.

   Post Interview statements

6. On 24 June 2013, the applicant submitted to the Department a statement in which he made the following key points:

   a.When asked during his interview whether he had ever lived in [Country 1] and [Country 2], he had denied this. However, this was “incorrect and untruthful”, for which he apologised.

   b.The reason for his “untruthful response” was that he had been advised not to reveal this information in his visa application by a migration consultant named Mr H (name provided), whom he paid PRP 1 million to get a student visa for his wife.

   c.He had, in fact, lived in [Country 1] for four and a half years; returned to Pakistan in November 2009; then lived in [Country 2] from December 2009, where he and his brother were arrested and jailed in relation to [an offence].

   d.Mr H later came to Australia and lived in the applicant’s house. The applicant took out an apprehended violence order (AVO) against Mr H over a domestic dispute, which was later dismissed by the court.  Mr H threatened the applicant several times “for not telling anyone about the deal about the visa” and also said “he will see me when I come back to Pakistan”.

7. On 10 September 2014, the applicant submitted a further statement to the Department in which he stated that:

   a.Since his interview with the Department the security situation for Shia Muslims in Pakistan had deteriorated.

   b.[In] November 2013 one of his brothers was injured in an SSP attack on a Shia procession. After the incident the LEJ sent him a threatening note saying that next time he and his family would be killed. This prompted another of his brothers to take his family out of Pakistan and seek asylum in [Country 1].

   c.He will be killed if he returns to Pakistan because his family is on a SSP “hit list”.

   d.He enclosed photographs to prove he was a religious reciter for the Shia community in Australia since his arrival.

   The Delegate’s Decision

8. The delegate refused to grant the visas on 15 September 2015. The delegate accepted that the applicant was a Pakistan national of Shia faith and had been involved in religious reciting and singing. However in light of serious concerns about his general credibility as a witness, the delegate did not accept that the applicant had as high a profile as he claimed or was at higher risk of targeted harm for reasons of his Shia faith than other members of the Shia Muslim community in Pakistan.

   Application for Review

9. On 18 September 2015, the applicants sought review of that decision, a copy of which they provided to the Tribunal for the purposes of the review. The applicants are therefore taken to be on notice of its findings and reasons.

10. The applicants were represented in relation to the review by their registered migration agent.

11. On 15 June 2018 the applicant provided to the Tribunal a submission addressing the threats that he faced, the impact of going back on his family and kids, the truth behind the allegations made to the department about him and his family’s standing in Australia.

12. Key relevant points in this submission were that:

    a.Systematic Shia genocide is a reality in Pakistan and he has a real fear he will be killed if he returns there.

    b.As a reciter in Pakistan, he falls into the mid-average category: those who do not get security from the government or cannot afford to get their own security, like those reciter in the top/best category. He does not fall into category of low grade reciters, who generally remained unnoticed and were thus ignored by target killers. Given that the top category reciters (who had security) were leaving the country, what future did he have in Pakistan?

    c.His [brother] was seriously injured in a major terrorist attack on a Shia procession [during] Moharram in 2013, which left scores dead and injured. He continues to receive threats from unknown telephone numbers and is now moving constantly and using public transport to hide his identity. His [other] brother sent his family to [Country 3] and has been granted asylum in [Country 1].

    d.Returning to Pakistan will have a serious negative impact on his kids, two of whom were born in Australia. He wants them to have a life which is secure and safe and not to suffer the associated traumas.

    e.He made “mistakes” in his Department interview “because of the advice/threats” from Mr H, whom he paid for "professional" advice and services related to his departure from Pakistan but then made the anonymous “tip-off” to the Department. Mr H wanted the applicant to keep his mouth shut regarding the transaction. Those mistakes, coupled with the tip-off, weighed heavily against him in the delegate’s decision but the Department failed to consider the relationship between him and Mr H.

13. The applicant submitted a large number of supporting documents, including letters of support from Islamic and Pakistani organisations regarding his community work and reciting; photographs of the applicant reciting at community events; a report entitled “Shia genocide: a crisis in Pakistan” and details of Shia killings from 1963 to 2017; translations of a report to police and other statements relating to threats and attacks on the applicant’s brother in 2014; a First Information Report (FIR) from November 2013; academic transcripts for courses undertaken by the applicants; business registrations, referrals/customer feedback forms,  ATO statements; passports and other identity documents.

14. The applicants appeared before the Tribunal on 19 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence in support of the applicant from two witnesses from Shia Islamic community organisations in Sydney, who spoke about his participation in community events, including as a reciter and the prevalence of anti-Shia sectarian violence in Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani), Urdu and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

15. 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.

16. 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).

17. 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.

18. 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’).

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

    Credibility

20. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.

    Analysis, Reasons and Findings

21. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

22. The applicant’s central claim is that, if he returns to Pakistan, he will be harmed or killed by Sunni extremists from SSP and LEJ on the grounds of his religion because he is a famous Shia religious reciter and his name is on their “hit list”.  At hearing, the applicant also introduced the claim that he fears Mr H might kill him if he returns to Pakistan, although he has not seen or heard from him since 2012 and is not aware of his whereabouts.

23. The Tribunal accepts that the applicant is a Pakistani national of Shia Muslim religion and has been a religious reciter in Pakistan and Australia. However, for reasons outlined below the Tribunal did not find the applicant to be a credible or truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, his admission that he gave untruthful evidence to the Department and the Tribunal, the implausibility of key aspects of his claims and other reasons detailed below. 

    Shia religion and religious reciter

24. The applicant gave consistent evidence that the only harm he experienced in Pakistan was from students from Sunni organisations while organising Shia activities at college in [year]. He had no encounters with SSP or LEJ while in Pakistan.

25. However, the applicant’s claims to fear harm evolved significantly over the course of the Protection visa process. In his initial application, his fear of harm was premised on his claim that he was a famous religious Shia reciter in Pakistan and many of his fellow reciters and relatives had allegedly been killed around 2011 and 2012. However, in his Department interview in June 2013 as recorded in the delegate’s decision, the applicant introduced a new claim that, a few months earlier, his brother in Rawalpindi had received an anonymous telephone threat against the applicant should he return to Pakistan. In a statement submitted after the interview, the applicant further claimed that, after his brother was attacked during a Shia procession in November 2013, he found a death threat from the LEJ and that his whole family was on a SSP “hit list”. In support of his claim, the applicant submitted various documents relating to the threats and attacks on his brother, including a FIR (as detailed at paragraph 13).

26. The Tribunal finds these claims implausible. To start with, the applicant’s claim that he was a famous religious reciter, performing in various cities around Pakistan and active in the Shia community is seriously undermined by his revelation (paragraph 6.a and 6.c) that he had, in fact, lived in [Country 1] and [Country 2] for most of the six years before he left for Australia. Even if it were to accept that the applicant was a religious reciter from childhood and recited until he left Pakistan for [Country 1] in 2005, the Tribunal is not satisfied that the applicant had a high profile as a reciter or Shia religious activist in Pakistan, a point he himself made in his submission to the Tribunal (paragraph 12.b). Nor does the Tribunal find credible that in 2013 or 2014, Sunni extremists, like the SSP or LEJ, would be targeting the applicant, who had been absent from Pakistan for most of the previous eight years, for reciting activities in Pakistan a decade earlier and in Australia since 2011; or for any other reason.

27. Neither does the Tribunal accept that the applicant’s name is on a SSP or LEJ “hit list”, noting his evidence at hearing that no one had seen such a hit list and that this was merely his assumption, based on his brother telling him about other reciters being killed or leaving Pakistan. As discussed with the applicants, there may be a range of circumstances in which a person might be targeted or killed by extremists or leave their country. The Tribunal does not accept the conclusion drawn by the applicant that, because some people who happened to be Shia reciters were killed in Pakistan, he would be killed because he was a Shia reciter; nor that reciters who left Pakistan, necessarily did so to escape such a fate.

28. The Tribunal has had regard to documents submitted by the applicant about the alleged attacks on his brother in Rawalpindi in 2013, including a FIR from the police. However, as discussed with the applicant, according to DFAT’s latest report on Pakistan[1], document fraud is endemic in Pakistan; it is relatively easy to obtain a fraudulent FIR and police in Pakistan accepting bribes to verify fraudulent FIRs so the existence of an FIR is not considered to constitute evidence that the events described in the FIR actually occurred. In view of this and other concerns about the applicant credibility as outlined below, the Tribunal does not give weight to these documents.

    [1] DFAT, DFAT Country Information Report Pakistan, 1 September 2017

29. The Tribunal has also considered, but is not satisfied, that there is a real chance that the applicant will suffer serious harm if he returns to Pakistan now or in the reasonably foreseeable future as a Shia Muslim.  As discussed with the applicant at hearing, while Shias have long been targeted by Sunni extremist groups in Pakistan, including SSP and LEJ, there is general agreement among independent sources, including DFAT[2], that sectarian violence has reduced significantly since 2014, when the Government began implementing various anti-terrorist operations, including Zarb-e-Azb, Radd ul Fasaad and the National Action Plan. DFAT assesses as low the risk of generalised and sectarian violence for most Shias in Pakistan and even lower in the applicant’s home province of Punjab, where it is reported there were no terrorist incidents of a sectarian nature in 2017 and the LEJ have now been eliminated.

    [2] ibid.

1. The Tribunal has examined the material provided by the applicant about the security situation and sectarian violence against Shia Muslims in Pakistan. However, there is no persuasive evidence before the Tribunal to suggest that this form of violence is faced by the applicant personally. The Tribunal is not satisfied that the general security situation in Pakistan would expose the applicant to a real chance of persecution for a Convention reason.

   Credibility

2. As discussed at hearing, the Tribunal has serious concerns about the applicant’s truthfulness and general credibility.  

3. The applicant gave inconsistent evidence about his employment in Pakistan before his departure for Australia. At his hearing he told the Tribunal that he worked at [Business 2] for three months. However, he made no mention of such employment in his Protection visa application, where he indicated that he worked for [Business 1] in Islamabad between [year] and March 2011. When asked about this inconsistency, the applicant said the migration consultant, Mr H, told him not to mention his employment with [Business 2]. Asked whether Mr H. had assisted the applicant with his Protection visa application, as well as his wife’s Student visa application, the applicant said no. Noting his earlier evidence that Mr H told him not to mention his time in [Country 1] and [Country 2] in the Student visa application, the Tribunal put to the applicant that this did not explain his statement in his Protection visa application that he worked for [Business 1] in Islamabad for seven years during a time when, by his own evidence, he was mostly not living in Pakistan. The applicant responded that at time he made this application, he did not know that Mr H was going to make a “tip off” to the Department. As discussed with the applicant, the T is concerned that but for the “tip off”, he appeared to have no reservations about giving untruthful evidence and notes that he did not take the opportunity to correct or amend any of his evidence when invited to do so at the beginning of the hearing.  

4. The Tribunal’s concern about the applicant’s truthfulness and credibility is compounded by the fact that he provided a false document about his employment with his wife’s Student visa application: a letter from [Business 1] dated 20/12/2010 confirming that he had worked for that firm from [year] and submitted a copy of the same letter with his Protection visa application. When this information was drawn to his attention in accordance with s.424AA of the Act, the applicant responded that he obtained the letter on the advice of Mr H to cover the period that he was not in Pakistan. He also claimed that, as Mr H had advised not to mention his time in [Country 1] and [Country 2] in the Student visa application, he did not mention it in the Protection visa application in order to be consistent with the previous application. This underlines the Tribunal’s concern about the applicant’s readiness to be flexible with the truth. 

5. As discussed with the applicants, in light of their readiness to submit false documents in support of their visa applications, coupled with country information about the prevalence of document fraud in Pakistan, the Tribunal is not prepared to give weight to any of the documents they have provided.

6. While both applicants claimed at various times in the hearing that Mr H, to whom they paid a consultancy fee, assisted them with their application for their Student visa, he was not identified in this capacity on their form, in which “no” was ticked in response to the question whether there had been any assistance in preparation of the form. Moreover, the applicant wife signed a declaration at the end of the form certifying that “the information supplied on or with this form is correct”. When this information was drawn to the applicants’ attention in accordance with s.424AA of the Act, both affirmed that it was Mr H, their consultant, who filled in the form, but said that he had to remain “behind the scenes” as he was working for [an authority] in Islamabad at the time.  

7. As discussed with the applicants, the Tribunal can only go by the evidence before it. Given that the applicants have admitted to providing false information and documents in their Student and Protection visa applications, while each signing declarations confirming the veracity of information submitted, the Tribunal does not accept their unsubstantiated assertions about the role Mr H allegedly played in relation to their visa applications, nor the applicant’s claim that Mr H threatened him (paragraph 6.d) or would kill him (paragraph 22).

8. Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Pakistan and the reason he fears harm there or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant is a famous Shia religious reciter who has been targeted by Sunni extremists from the SSP and LEJ; nor that his name is on their “hit list”. It follows that the Tribunal is not satisfied that, if he returns to Pakistan, the applicant will be targeted or killed by these extremist groups because of his reciting activities. In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a Protection visa in order to remain in Australia.

9. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Pakistan the applicant will suffer serious harm amounting to persecution for reasons of his religion or for any other Convention reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to Pakistan now or in the reasonably foreseeable future.

   Complementary Protection

10. The Tribunal has also considered the applicant’s claims under the complementary protection criterion. The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa.

11. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that acts of terrorism and general lack of security in Pakistan are faced by the population generally and not by the applicant personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Pakistan as a result of general violence, lack of security and instability.

12. The Tribunal accepts that the applicant wants to remain in Australia and for his children, including two born in Australia, to have a secure and safe life here. The Tribunal accepts that the family’s return to Pakistan after seven years may be disruptive and traumatic for all of them. However, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that they will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.

13. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

    Non-disclosure certificates

14. In the course of the hearing the Tribunal discussed with the applicants that there were two non-disclosure certificates on the Departmental file. The Tribunal accepts as valid the first certificate, issued under s.438(1)(b) of the Act which covers information given to an officer of the Department in confidence or containing information about a third party and affecting personal privacy. The Tribunal notes that the delegate in fact discussed with the applicants the information about the “tip off” to the Department, which this certificate covered and the applicant addressed the issues arising from this information in his statement to the Department, in his submission to the Tribunal and at hearing. The Tribunal does not consider valid the second certificate, issued under s.438(1)(a) as it covered information relating to internal deliberations of the Department. However, the information covered by the certificate was of a procedural nature and was not relevant to the Tribunal’s considerations.   

    CONCLUSIONS

15. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Mara Moustafine
    Member