1513401 (Refugee)

[2018] AATA 5531

1513401 (Refugee) [2018] AATA 5531 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513401

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Mara Moustafine

DATE:4 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2018 at 11:04am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – conversion from Sunni to Shia – donation of land to Shia Muslim school – threats from Sunni extremists – inconsistent evidence – credibility issues – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), 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 applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of Pakistan. He arrived in Australia [in] June 2014 on a [temporary] visa valid for three months.

3. He applied for a protection visa on 29 October 2014. 

   Evidence before the Department

   Protection Visa Application

4. According to his protection visa application, the applicant is a Shia Muslim born in Sargodha, Punjab province on [date]. He completed 10 years of education and was a self-employed [businessman]. His wife and [children] remain in Pakistan. Three of his siblings live in Pakistan and one in [another country]. He has previously travelled to [two other countries].

5. In a statement provided with his application, the applicant stated that he was a devout Muslim born into a Shia family, in which his father was Shia, his mother Sunni, one brother and sister Sunni and one brother Shia. His upbringing was “very liberal” with no compulsion to follow a particular sect. He adopted the Sunni sect from an early age, but married a Shia woman, who wanted him to adopt her sect, as did his father. As it was difficult to “break the inherent belief system” it took him a while to “take the plunge”. However, he was “accepted into the Shia sect on [date]/05/2014”. After this, he started receiving threats from “local right wing Sunnis”, which also impacted on his family.

6. After the death of his Shia father, the applicant decided to fulfil his wish to donate a plot of land to the “Majlis Wahadat-ul-Muslimeen (MWM) a Shia organisation” for an Islamic school. After he declined the approach from Sunni extremists from Sipah-e-Saba (Lashkar-e-Jhangvi) (SSP/LEJ) to sell them the land for a Sunni school, two armed men entered his house [in] June 2014 threatening to kill him if he did not give the land to SSP/LEJ. This prompted him to flee his house and live like a fugitive. As people were scared of SSP/LEJ and not willing to give him shelter, he left Pakistan to seek safety in Australia. His wife later told him the situation had not improved and she was still receiving phone calls about his whereabouts and threats that he would be killed once the extremists got hold of him. He is afraid to return to Pakistan as he is sure he will be killed by SSP/LEJ. The law enforcement authorities will not protect him because of corruption.

7. Relevant documents submitted in support of the applicant’s claims included a First Information Report (FIR) dated [June] 2014 regarding threats at his home [in] June 2014; a letter from AIMS School System regarding the impact of threats against the applicant on his children’s education; a letter from [Mr A, an official] of [District 1] MWM Pakistan ( confirming that the applicant was “accepted to the Shia sect [date]-05-2014”; a police report dated [September] 2014 stating that they were unable to provide protection for the applicant's wife against ongoing threats; and a translation of a handwritten land transfer document dated [June] 2014 regarding an “Oral Agreement”, witnessed [in] June 2014, stamped [in] June 2014 in Sargodha, Pakistan.

   Protection Visa Interview

8. The applicant attended an interview with the delegate on 20 May 2015, a summary of which is contained in the Department’s decision record. Where relevant, the applicant’s oral evidence to the delegate is discussed below.

9. After his interview the applicant provided a further statement to the Department dated 2 June 2015 addressing issues arising from his interview, including:

   a.    What made him “take the plunge” to become a Shia was being told by the imams that Islam would have been extinct today if Hazrat Imam Hussain and his family had not sacrificed their lives in the battle of Karbala and the fact that most of his family were Shia.

   b.    The Imam of the Imam Bargah (Shia mosque) [named] performed the ceremony to “formally accept him into the Shia sect”, making him read the Shia Kalma (prayer) and repeat the names of the 12 Imams and other Shia figures as part of the “conversion ritual”.

   c.    This angered his Sunni friends but at the time not many people knew he had converted to the Shia sect. The fact of his conversion became known in the local Sunni community when he declined the SSP’s offer of money and donated the plot of land to the [Shia mosque] “being run by the Majlis Wahadat-ul-Muslimeen”. The SSP were enraged by his conversion and used the donation of the land to settle scores with him. His conversion was the underlying reason for SSP acts of violence against him.

   d.    His wife, who was living alone with their children in Pakistan, was regularly being threatened by SSP and had sought police protection against them, which they were unable to provide.

   The Delegate’s Decision

10. The delegate refused to grant the visa on 2 September 2015. She accepted that the applicant was a Shia Muslim and Sunni to Shia convert, but did not accept that he or his family were attacked by Sunni Muslim extremists; nor that he is of interest to them due to his conversion or because he fulfilled his father's wish to donate a parcel of land for a Shia Muslim school.

    Application for Review

11. On 30 September 2015, the applicant sought review of that decision, providing a copy to the Tribunal for the purposes of the review. The applicant is therefore taken to be on notice of its findings and reasons.

12. The applicant was represented in relation to the review by his registered migration agent, who attended his hearing.

    Pre-hearing Submissions

13. On 19 June 2018 the applicant’s migration agent provided to the Tribunal a submission and documents in support of his claims. The agent posited that the applicant feared serious harm in Pakistan for reasons of his religion (practising Shia Islam/abandoned Sunni Islam) and membership of a particular social group (former Sunni convert to Islam and opponent of Sunni extremists, including Taliban and ISIS). The submission contained online links and extracts of generic country information regarding killings of Shia minority in Pakistan, including Shia converts; and impediments to state protection and relocation for the applicant. 

14. Documents provided in support of the applicant’s claims included an FIR made by the applicant to local police [in] June 2014 regarding an incident in which two armed men allegedly entered his property, held him and his family hostage and threatened him; a letter from the Revenue Officer of the Punjab government, indicating that it was not possible to issue a computerised property ownership document (FARD) for the transfer of his father’s land to the mosque; a letter from a high court advocate in Pakistan attesting that the FIR and letter were genuine documents; a statement from two men in Pakistan that the applicant “converted his religious faith/beliefs to Fiqah-e-Jafaria (Shia Maslak)” in their presence [in] May 2014 and from a third who “supervised” this conversion; a letter from [Organisation 1] of Australia stating that the applicant was from a Shia background and involved in community work and religious activities here;[1] a psychologist report stating that he was “depressed/anxious” and that his main stress was related to his family in Pakistan.[2]

    [1] The same document was earlier provided on 26 July 2017.

    [2] Medical documents and an earlier report from the same psychologist were also provided on 14 September 2017.

15. On 25 June 2018, the applicant’s migration agent provided to the Tribunal a statutory declaration from the applicant regarding details of religious figures present at his conversion and of the places where he lived after leaving his village; and a statement dated 16 February 2018 from [Mr A, an official] of [District 1] MWM stating that the applicant had been engaged with the organisation [in a certain role], noting that the organisation was a “religious organisation” and not involved in any political activity, nor affiliated with any political party.

16. The applicant appeared before the Tribunal on 26 June 2018 to give evidence and present arguments.

17. At the start of the hearing the Tribunal confirmed with the applicant that he was fit to participate in the hearing. With the applicant’s consent, the Tribunal decided not to take witness evidence by telephone from the applicant’s psychologist but to rely on his written reports submitted to the Department and Tribunal.  While the applicant’s migration agent at hearing (and the applicant in a post-hearing statutory declaration) submitted that the Tribunal should call the psychologist unless it was prepared to accept that the applicant’s relocation to another part of Pakistan would be unreasonable due to his mental state. However, as discussed at hearing, while the Tribunal accepted the psychologist’s professional competence to assess the applicant’s mental state, this did not extend to assessment of country conditions in Pakistan or relocation.

18. At the applicant’s request, the Tribunal took oral evidence by telephone from Pakistan from several witnesses, whose written statements had already been provided to the Tribunal (paragraph 14 refers). This included the high court advocate who claimed he had made inquiries to confirm the authenticity of the FIR and revenue record submitted to the Tribunal by the applicant; and two of the three witnesses present at his “conversion” to the Shia sect. The Tribunal made multiple unsuccessful attempts to telephone in Pakistan a third witness to the applicant’s “conversion” and [Mr A] of MWM; as well as the representative of [Organisation 1] of Australia in [City 1, Australia]. After discussion with the applicant, the Tribunal opted not to call these witnesses at a later time in his absence, but to rely on their written statements already submitted to the Tribunal. Notwithstanding its reservations, noted at hearing, as to how much weight to give oral evidence from unknown witnesses at the end of a telephone line in a foreign country, the Tribunal has taken their evidence at face value.

19. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

    Post Hearing Submissions

20. At hearing the Tribunal granted the applicant’s migration agent 14 days to provide further submissions. On 10 July 2018, the migration agent emailed the Tribunal seeking a further extension of time.

21. On 16 July 2018 the agent emailed a statutory declaration from the applicant in which he provided further explanations about his claims and highlighted recent human rights violations and threats of violence against Shias in Pakistan, including by ISIS. The applicant also raised some issues on which he had earlier given his oral agreement at hearing, including that the Tribunal need not pursue telephone witnesses it had been unable to reach and from whom it had already received written evidence. The applicant also introduced a new claim that Pakistani authorities might consider him an “enemy of the state” as they were aware of his “protection visa” because he had applied for a new passport and included the scan of a letter from the Consulate General and Trade Commission of Pakistan in Sydney.

22. The applicant’s migration agent emailed further submissions on 24 and 30 July and 9 October 2018, containing links and extracts to generic country information and media reports regarding recent attacks against Shias, escalating Islamic terrorism and extremism in Pakistan, Shia converts facing targeted attacks, Shias charged under blasphemy laws, Shias facing threats of abduction to extort money, the decline in the security situation around the time of the Pakistan election and the support of the new Pakistan government and Prime Minister Imran Khan for anti-Shia organisations and the Taliban. On 8 October 2018 the agent provided scanned photographs of the applicant engaged in Muharram activities in 2018 in Australia.

23. On 6 November 2018, the applicant’s migration agent submitted a response to the Tribunal’s letter of 23 October 2018 regarding issues arising from the hearing and including statements from the applicant and [Mr A] of the MWM. These issues are discussed further at paragraph 43. In his response the applicant also introduced a new claim that, as a Shia “convert,” he “would be specifically targeted and killed” due to a perception that he had “dishonoured Sunni Islam and committed a crime of Blasphemy for abandoning the core principle of Sunni Islam”.

24. The Tribunal has had regard to the materials submitted. Where relevant, these are discussed below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

26. 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).

27. 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.

28. 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’).

29. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

30. 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

31. 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.

32. The applicant’s key claim is that if he returns to Pakistan he will be killed by Sunni extremist group SSP/LEJ who threatened him because he “converted” from Sunni to Shia Islam and refused to sell them his deceased Shia father’s plot of land, but donated it for use as a Shia school, as was his father’s wish. Although the applicant told the Tribunal at hearing that there was “absolutely no other reason” why he feared returning to Pakistan, he subsequently claimed that, as a Shia “convert,” he “would be specifically targeted and killed” due to the perception that he had dishonoured Sunni Islam and committed the “crime of Blasphemy for abandoning the core principle of Sunni Islam”, although he did not specify by whom; and that there was a strong possibility that Pakistani authorities might consider him an “enemy of the state” because they are aware of his protection visa application.

33. Based on his psychologist’s written reports provided to the Department and the Tribunal, the Tribunal accepts that the applicant has been treated for “depression and anxiety” due to uncertainty related to his protection visa process. The Tribunal has considered the report’s identification of “the threat and stress related to his life back in Pakistan” as a basis for the diagnosis of the applicant’s condition. However, it does not give this weight as it is based on the words of the applicant. 

34. The Tribunal did not find the applicant to be a credible and 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, the unpersuasive nature of some key aspects of his claims and other reasons detailed below. 

    “Conversion” to Shia Islam and donation of father’s land for a Shia school

35. As noted in the delegate’s decision, Pakistan’s constitution establishes Islam as the state religion, does not distinguish between Sunni and Shia Muslims and there are no legal barriers on “conversion” between Sunni and Shia sects. Shia mosques and places of worship, or imambargahs, are located throughout Pakistan, including most major cities and towns. Shias can pray in Sunni mosques and vice versa.[3]

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

1. The Tribunal accepts that the applicant is a Shia Muslim, who may have come from a mixed Shia/Sunni family, which is not uncommon in Pakistan, and followed Sunni practice before adopting Shia beliefs, including reciting the Shia kalma, as he demonstrated at hearing. On the basis of the letter from [Organisation 1] of Australia, the Tribunal accepts that the applicant has been an active participant in the activities of this organisation (mainly relating to community work and religious activities). It accepts that he participated in 2018 Muharram activities several months after his hearing, as per photographs provided on 9 October 2018.

2. However, the Tribunal found the applicant’s evidence about his “conversion” over the course of his protection visa process contrived and inconsistent, including with country information. In his initial application the applicant simply stated that he “was accepted” into the Shia sect and provided a statement to this effect from [Mr A] of the local branch of the MWM Shia organisation. However, after his interview with the Department, the applicant introduced new evidence that he went through a “conversion ritual” and was formally accepted into the Shia sect in a “ceremony” performed by the imam of the local Shia mosque. In his statutory declaration of 21 June 2018 submitted to the Tribunal, the applicant claimed that a second Shia scholar also presided at the “conversion process” and submitted a witness statement from him to this effect, along with statements from two other witnesses.

3. As discussed with the applicant at hearing, no sources were located by the Tribunal that suggest there is a formal procedure or ritual for ‘converting’ from Sunni to Shia Islam. Muslim sources, including the Shia Chat and Quora blog sites, emphasise that, as Sunni and Shia are sects of the same religion – Islam – “there is no conversion involved” and “no conversion protocol required”, including any ritual at a mosque.[4] A Sunni Muslim wishing to convert to the Shia sect simply starts following the Ja’fari school of thought, observing Shia rituals, prayer and ceremonies. The Tribunal notes that the process for adopting the Shia faith described in telephone evidence by the Moulana who the applicant claimed presided over his conversion (paragraph 14 refers) was not inconsistent with that described above. Asked what the applicant had to do to “convert”, the Moulana said the applicant had come to their organisation, which he later identified as the MWM, and recited the Shia kalma – because it was different to the Sunni prayer, although he also mentioned the importance of participating in the Muharram gathering and procession, of which the applicant made no mention at hearing.

   [4] For example, < < Immigration and Refugee Board (IRB) of Canada, Pakistan: The situation of Sunni Muslims who convert to Shi'ism; the procedure involved in converting (June 2003 - August 2005), 4 August 2005, <

4. The Tribunal notes that, in his post-hearing statutory declaration of 16 July 2018, the applicant shifted his evidence regarding “conversion”, stating that “since Shia and Sunni basically believes on Quran, Allah and Prophet Mohammed, there is no need for a structured conversion process similar to Islam to Christianity”. He also misconstrued the distinction drawn by the Tribunal between “conversion” from one religion to another, for example from Christianity to Islam and adopting the Sunni or Shia sect within one religion – Islam, erroneously claiming that the Tribunal had suggested these were comparable processes.

5. The applicant’s evidence regarding the two events central to his claims – his alleged “conversion” and the handover of his father’s plot of land for a Shia school – is significantly undermined by inconsistencies in his evidence regarding the timing of these events. Throughout his protection visa process, the applicant identified the date on which he was accepted into the Shia sect as [May] 2014 – and this was also given in the statements of the three witnesses. He also told the Tribunal and the Department that he decided to become a Shia on the day he handed over his land for the Shia school.[5] Yet the date the applicant gave for this handover was [June] 2014 – a month later than his claimed “conversion”. These June dates also appear on the land transfer document which the applicant provided in support of his claims. Moreover, in his statement of 2 June 2015, submitted to the Department after his interview, the applicant indicated that his “conversion to the Shia sect” had taken place before he declined the SSP’s offer of money and donated the plot of land to the Shia mosque (paragraph 9.c refers). These inconsistencies call into question the sequence of events that the applicant claims resulted in threats from Sunni extremists and raise serious doubts about the veracity of his evidence, as well as the supporting documents he provided.

   [5] Noted in the delegate’s decision, p.5.

6. The Tribunal is also concerned about the applicant’s evidence regarding the MWM, the Shia organisation he initially identified as the recipient of his father’s plot of land for the Shia school. The applicant submitted two statements from [Mr A] of the organisation’s [District 1], including one confirming the applicant’s acceptance into the Shia sect (paragraph 7) and another relating to the applicant’s engagement in [a specified] role for his organisation, which he described as a “religious” organisation, not involved in any political activity or affiliated with any political party (paragraph 15). At hearing, the Tribunal made four unsuccessful attempts to telephone [Mr A], whom the applicant nominated as a witness in Pakistan but, for reasons already identified at paragraph 18, declined the applicant’s suggestion to call the witness in his absence after the hearing.

7. When asked about the MWM at hearing, the applicant described it as a “community organisation”, taking care of Shia people in the area and “not a powerful organisation”. He reiterated that it was not a political party, part of a national political party or linked with any political party. However, on further investigation after the hearing, the Tribunal found that, contrary to the applicant’s evidence and [Mr A]’s statement, the web address identified on the letterhead of all [of Mr A]’s statements – – linked through to the site of the MWM Pakistan, a Shia political organisation. Furthermore, other sources, including Wikipedia and Pakistani media, also identified the MWM as a major Shia political party with a presence all over the country, including in Punjab.[6]

   [6] <

8. Although the Tribunal had indicated to the applicant at hearing that it accepted that he donated a block of land to MWM, this inconsistency raised concerns regarding the genuineness of his evidence. The Tribunal, therefore, wrote to the applicant on 23 October 2018 advising that, in light of these contradictions, it was reconsidering whether the applicant had in fact donated land to the organisation, as claimed, and invited the applicant to make submissions on this issue.

9. With his response on 6 October 2018, the applicant included a statement from [Mr A] of Majlis Wahdat-ul-Muslimeen Pakistan on the same letterhead as previously with a web link to In his statement, [Mr A] reiterated his earlier statement that “Majlis Wahdat-ul-Muslimeen, Pakistan is a religious organisation and is not engaged in any political activity nor is affiliated with any political party.” He further elaborated that the organisation “did not have any capability for engaging in political activities” as “evidenced by the fact that not a single person related to our party has contested the recent elections in Pakistan held in July 2018, neither for The National Assembly nor for the Provincial Assemblies….In a nutshell, Majlis Wahadat-ul-Muslimeen Pakistan is a Shia religious organisation established solely for promoting and safeguarding the interests of Shia Community and don't have any political connections or ambitions, whatsoever”.

10. The Tribunal has had regard to the applicant’s response, including the letter submitted from [Mr A] of the MWM. It finds, however, that the response does not address the Tribunal’s concern as to why, if the “Majlis Wahdat-ul-Muslimeen, Pakistan is a religious organisation and is not engaged in any political activity nor is affiliated with any political party” and does not have “any political connections or ambitions”, the web address provided on [Mr A]’s letterhead links through to the website of the political organisation of the same name. Further, [Mr A]’s statement that no one related to the MWM party contested the July 2018 elections in Pakistan is inconsistent with Pakistani media reports indicating that the MWM ran its own candidates in several provinces in the 2018 election and in others formed alliances with Pakistan Tehreek-e-Insaf (PTI), the party of the subsequently elected Prime Minister Imran Khan.[7] These reports also undermine the applicant’s claim at hearing that the MWM had no link with any political party and that, in an election, Shias generally voted for the “Pakistan People’s Party” and not for any other party, because Benazir Bhutto was a Shia. These inconsistencies raise doubts as to whether the applicant has been truthful in his evidence regarding his involvement with the MWM and the genuineness of the documents purported to have been provided by [Mr A] of the MWM’s [District 1] branch. The Tribunal did not take up the applicant’s request that, if it had any residual concerns about his credibility, it should simply call the number provided by [Mr A] in his letter. In light of its concerns about the credibility of evidence already provided in the name of [Mr A], the Tribunal did not believe that contacting him would overcome its concerns, particularly given its reservations, already noted at paragraph 18, about the reliability of oral evidence from unknown witnesses at the end of a telephone line in a foreign country.

    [7] < “List of all MWM candidates for General Election 2018”, < <>

    The Tribunal also finds dubious [Mr A]’s statement of 16 February 2018 that the applicant “was engaged with his organization [in a certain role], whose responsibilities included [details deleted]. The Tribunal notes that no time frame was indicated for this employment and that, at no time during the protection visa application process did the applicant himself mention this “engagement” in either his written application or oral evidence. This includes when the Tribunal asked the applicant why he had not mentioned any participation in Muharram activities, which are of major significance for Shia Muslims. In the Tribunal’s view, if the applicant had been involved with [the work specified] during this holy month in Pakistan, he would not have missed the opportunity to mention this.

11. The Tribunal has had regard to the land transfer document and letter from the Revenue Office indicating that it was not possible to issue a computerised FARD which the applicant provided. However, as discussed with the applicant at hearing, in light of DFAT’s advice that document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority and written by hand[8] – as well as its concerns about the credibility of other material submitted by the applicant and his general credibility – the Tribunal does not attach weight to these documents.

    [8] DFAT, DFAT Country Information Report Pakistan, 1 September 2017, p.42 states as follows:

    Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. … More broadly DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common.

12. In view of its concerns outlined above, the Tribunal is not satisfied that the applicant went through any formal “conversion” process or ritual in order to adopt the Shia sect, nor that he donated a plot of land to either the MWM or the Shia mosque for a Shia school, as claimed. The Tribunal is, therefore, not satisfied that the applicant was threatened or targeted by Sunni extremists from SSP/LEJ as a result or that this prompted him to flee his house, live in hiding or leave Pakistan to seek safety in Australia; nor that his wife has continued to receive ongoing threats for these reasons.

    Threats from Sunni extremist group SSP/LEJ

13. The applicant has asserted that he was threatened in Pakistan by Sunni extremists from SSP/LEJ and that they would kill him on his return to Pakistan.  In his initial statement, he claimed this was because he refused to sell them the plot of land to be used for a Sunni school, but donated it for a Shia school (paragraph 6). However, he subsequently shifted his evidence to say that his “conversion” to the Shia sect was the underlying reason for SSP acts of violence against him (paragraph 9.c).

14. As discussed with the applicant at hearing, while country information indicates that Sunni extremists groups, such LEJ and SSP, regard Shias as infidels and have been responsible for large scale attacks on Shia communities, mosques, shrines and religious institutions,[9] no reports were located of these groups specifically targeting Sunnis who converted to the Shia faith for this reason. Nor has the Tribunal located any reports of Sunni extremist groups specifically targeting Shia “converts” because they perceived them as committing the crime of blasphemy for abandoning the core principle of Sunni Islam, as later claimed by the applicant (paragraph 22). Given that the Pakistan constitution does not distinguish between Sunni and Shia Muslims and there are no legal barriers on “conversion” between Sunni and Shia sects, the Tribunal does not consider that the applicant would be targeted by the state for this reason either. 

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

15. The Tribunal has had regard to the reports of attacks on Shia “converts” in submissions from the applicant’s migration agent of 19 June 2018 and 23 July 2018. However, it is not clear whether the victims were specifically harmed because they had converted, or for their Shia identity more generally. In the case of the report from ABNA extracted in the adviser’s submission of 23 July 2018 about the killing of a Shia convert and his brother by SES extremists in September 2015, the Tribunal notes that the full article, which the Tribunal accessed online, states that the individual concerned, who “converted to Shia Islam some time back”, was “preaching Shiite in Charsadah and adjacent areas” of Khyber Pakhtunkhwa (PKP), an area which is home to a large number of Hazara.[10] It is unclear whether the victim was specifically harmed because he was a “convert”, for his preaching or Shia or Hazara identity. In any case as a preacher operating in an area with high rates of militant and sectarian violence, his profile is significantly different to that of the applicant, who has given no indication of activist religious engagement and comes from the Punjab province, which DFAT assesses as experiencing fewer incidents of sectarian violence than other areas of Pakistan.[11]

    [10] <

    [11] DFAT, DFAT Country Information Report Pakistan, 1 September 2017, p.8.

16. The Tribunal has also had regard to the report in the migration agent’s submission that a Muslim man has been sentenced to death for posting on Facebook in Pakistan “blasphemous” content – in particular offensive content about Sunni leaders and the wives of Prophet Mohammed. The Tribunal does not accept the agent’s claim that this is relevant to the applicant’s case or that there is a real chance that he would be implicated in blasphemy charges as a Shia “convert” who had abandoned Sunni core religious values and holds an opinion against Shia religious leaders due to his views on the battle of Karbala. The Tribunal has no evidence that the applicant’s views on the battle of Karbala are any different to those of millions of Pakistani Shias, or that he has posted “blasphemous” or offensive content about Sunni leaders online.     

17. As the Tribunal has not accepted that the applicant donated a block of land to the MWM or to the Shia mosque, it is not satisfied that the SSP/LEJ targeted or threatened to kill the applicant because of this, as claimed earlier in his protection visa process.

18. The Tribunal has had regard to the FIRs regarding the alleged incident with the SSP/LEJ, which the applicant submitted as supporting evidence to the Department (paragraph 7) and the Tribunal (paragraph 14). However, as discussed with him at hearing, in light of DFAT advice regarding the prevalence of document fraud in Pakistan, the relative ease with which hand-written fraudulent FIRs might be produced and that DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred,[12] the Tribunal does not attach weight to the FIRs submitted. Moreover, the Tribunal notes that there are discrepancies between the versions of the FIR submitted to the Department (folio 69) and Tribunal (folio 117). While the Tribunal might disregard inconsistencies in the dates of the reports in the English translation, of concern is that the original Punjabi document presented to the Tribunal bears a stamp of the “Police Station [District 1]” which is absent from the same document on the Department file.

    [12] Ibid, p.42, DFAT states as follows:

    It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.

19. Further, in view of DFAT advice that there are credible reports of Pakistani officials accepting bribes to verify fraudulent FIRs, the Tribunal does not attach weight to the written statement from the high court advocate in Pakistan who claims to have verified the FIR and land transfer documents. The Tribunal notes that, during his witness evidence, although asked several times, the advocate was unable to explain how he went about getting police verification of these documents beyond saying that he “got confirmation from the police”, “got police verification” and “went personally to the police and obtained confirmation”.[13]

    [13] When the call was subsequently disconnected, the Tribunal made an attempt to call the advocate again. When there was no answer, the Tribunal got the applicant’s consent to “leave it there”.

20. 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 Sunni extremist groups in Pakistan, including SSP/LEJ, have intermittently attacked Shia religious gatherings and shrines and targeted high profile Shia individuals, there is general agreement among independent sources, including DFAT,[14] 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.[15] Under these circumstances, the Tribunal has assessed the chance of the applicant facing the risk of harm as a Shia in Pakistan as remote.

    [14] Ibid., pp.18-19.

    [15] Pak Institute for Peace Studies (PIPS), Research Journal Conflict & Peace Studies, Special Report 2017: Pakistan Security Report, January-June 2017, p.139.

1. The Tribunal has examined the material provided by the applicant about the security situation and sectarian violence against Shia Muslims in Pakistan, including Pakistani Taliban and more recently ISIS. 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 applicant’s individual circumstances, when considered with the general security situation in Pakistan, would expose the applicant to a real chance of persecution for a Convention reason.

   “Enemy of the state” as an asylum seeker

2. In a post-hearing submission, the applicant introduced a new claim that there was a strong possibility that Pakistani authorities might consider him an “enemy of the state” as his wife had advised him that they “were aware of [his] protection visa” because he had applied for a new passport, which “took many months to get”. Included with the submission was an English language document on the letterhead of the Consulate General and Trade Commission of Pakistan in Sydney dated [2016] headed “Grant of MRP Passport to Applicant holding Australia Protection Visa/Asylum Seekers”, which purported to be a “Reminder” from the MRP Section to the District Police Officer in Sargodha seeking clearance of documents in relation to the grant of a machine readable passport for the applicant, who was described as “holding Australian protection visa”.

3. The Tribunal has concerns as to the authenticity of this document and notes that no explanation was offered as to how it came to be in the applicant’s possession. In particular, the Tribunal notes that the email address on the letterhead – [deleted] – is inconsistent with the address appearing on the Consulate General’s website for “MRP Passport” which is given as [email protected]. 

4. Even if the Tribunal were to disregard these concerns, the Tribunal is not satisfied that the applicant will be regarded as an “enemy of the state”, even if the authorities become aware that he applied for a protection visa. By his own evidence, the applicant left Pakistan legally on his own passport and has since obtained a new valid Pakistan passport from the Consulate General in Sydney (paragraph 56 refers). According to DFAT, a Pakistani citizen who left Pakistan on valid travel documents and therefore did not to commit Pakistani immigration offences will face no difficulties on their return home. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. Only those who are returned involuntarily or are travelling on emergency travel documents are likely to attract attention from the authorities upon arrival. DFAT understands that those returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours.[16] The Tribunal is not satisfied that the applicant would face a real chance of harm for reasons of being an asylum seeker on his return to Pakistan.

   Delay in Applying for a Protection Visa

   [16] DFAT, DFAT Country Information Report Pakistan, 1 September 2017, pp.38-39.

5. As discussed with the applicant at hearing, the Tribunal’s concerns about the genuineness of his fear of persecution in Pakistan are exacerbated by his delay in applying for a protection visa until several days after his [temporary] visa expired. The Tribunal is not persuaded by his claim that the delay was due to his having to wait for supporting documents to be sent by his wife from Pakistan, given that it was open to him to submit his application and provide supporting documentation later, which he did not do.  Rather it is the Tribunal’s view that the applicant applied for a protection visa because his previous visa had expired in order to achieve a migration outcome.

   Summary Findings

6. 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 went through any formal “conversion” process or ritual in order to adopt the Shia sect, nor that he donated a plot of land to either the MWM or the Shia mosque as claimed. Neither does the Tribunal accept that while living in Pakistan, the applicant or his family were attacked or targeted by Sunni Muslim extremists from the SSP/LEJ either for “converting” from Sunni to Shia Islam or over his claimed refusal to sell them a plot of land which he gave to the MWM or a Shia mosque.

7. It follows that the Tribunal is not satisfied that, if he returns to Pakistan, the applicant will be specifically targeted or killed by these or other Sunni extremist groups for these reasons; or due to the perception that he had dishonoured Sunni Islam and committed the crime of blasphemy for abandoning the core principle of Sunni Islam”; nor because he is a Shia or for any other reason. Further, even if the Pakistani authorities were to become aware of his protection visa application in Australia, the Tribunal is not satisfied that they will consider the applicant as an “enemy of the state” for this reason.  In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia.

8. 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 as a Shia Muslim who abandoned Sunni Islam, membership of a particular social group of former Sunnis who adopted Shia belief, imputed political opinion as an opponent of Sunni extremists 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

9. The Tribunal has also considered the applicant’s claims under complementary protection. The Tribunal has not accepted the applicant’s claims that he will be harmed or killed by Sunni Muslim extremists for reasons of his “conversion” to the Shia sect or because he donated land for a Shia school. It has not accepted that he will face harm as a failed asylum seeker. In light of country information referenced at paragraphs 50-51 and 56 regarding the security situation for Shias in Pakistan, 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.

   CONCLUSIONS

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 criteria in s.36(2).

    DECISION

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

    Mara Moustafine
    Member