1606559 (Refugee)

[2017] AATA 471

1606559 (Refugee) [2017] AATA 471 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606559

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Mara Moustafine

DATE:1 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2017 at 8:18am

CATCHWORDS

Refugee – Protection visa – Pakistan – Religion -  Change from Sunni (Wahhabi Deobandi) to Shia Islam – Fear of harm - Credibility – Vague and inconsistent – Embellishment of evidence to enhance claims – Low risk of violence in applicant’s home area

LEGISLATION
Migration Act 1958

, ss 36(2)(a), (aa), (b), (c), 65

Migration Regulations 1994

, Schedule 2

CASES
MIEA v Guo & Anor

(1997) 191 CLR 559

Yao-Jing Li v MIMA (1997)

74 FCR 275

Prasad v MJEA (1985)

6 FCR 155

Luu & Anor v Renevier (1989

) 91 ALR 39

Randhawa v MIEA (1994)

52 FCR 437

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.    The applicant, who claims to be a citizen of Pakistan, entered Australia [in] November 2012 on a [temporary] visa valid until [in] December 2012.

2.    The applicant applied to the Department of Immigration for a Protection visa [in] December 2012. He claims to fear persecution from the Sunni Wahhabi Muslims because he changed his religion from Sunni (Wahhabi Deobandi) to Shia Islam.

3. The delegate of the Minister for Immigration refused to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act) [in] July 2013.

4.    The applicant applied to the Tribunal for a review of that decision [in] July 2013, providing a copy of the delegate’s decision record.

5.    A summary of the relevant law is set out at Attachment A.

6.    The issues that arise on review are whether the applicant’s claims are credible; if so, whether he meets the refugee criterion; and if not, whether he is entitled to complementary protection.

CLAIMS AND EVIDENCE

Application to the Department 

7.    According to his Protection visa application form, the applicant was born in [year] in Sialkot in the Punjab province of Pakistan. He identifies as a Shia Muslim of Mehar ethnicity. He had [number] years education and completed one year in [a college] in [year]. He worked as the [occupation] of [a] company in Sialkot between 2005 and 2012. He has [siblings] in Pakistan. He visited [countries] in November and December 2008.

Claims

8.    The applicant’s claims, as set out in a statement submitted with his application, are that he left Pakistan because he feared persecution from the Sunni (Wahhabi Deobandi) Muslims because he changed his religion from Sunni to Shia Islam. He claims he converted in March 2012 after attending the [name] Imam Bargha (Shia place of worship) with a friend, whom he met in College in 2004, at least once week over a period of six to seven years. After this he visited the Imam Bargha daily, without anyone knowing he had changed his religion. However, in early October 2012, he was seen leaving the Imam Bargha by a person from his village, who asked him what he was doing there. The applicant replied that he had attended to find out the difference between Wahhabi Deobandi Islam and Shia Islam. However, the villager didn't believe him as the applicant had not attended the local mosque for a long time. The following evening, a group of [number] people came to his house with stakes and shotguns, accusing the applicant of adopting an infidel religion and threatening him. This drove him into hiding for over a month, while the Mullahs and people of his village looked for him.  As his [temporary] visa, for which he had applied in July 2012, came through [in] October 2012 and he received his passport [in] 2012, he was able to leave Pakistan [in] November 2012. The applicant fears that, if he returns to Pakistan, he may be persecuted and even killed by the fanatical Wahhabi and Deobandi Muslims. He does not believe that the police and government will protect him because they themselves support Sunni Muslims over Shias; or that relocation is an option as the fanatical Muslims have complete control of Pakistan.

9.    The applicant provided copies of his passport extracts, identity card, a letter from Imam Bargha (untranslated) and media articles about killings of Shias in Pakistan. He did not attend his scheduled interview with the Department [in] May 2013.

Application for review

10.      The applicant provided to the Tribunal a copy of the delegate’s decision record for the purpose of the review and is taken to be on notice of the delegate’s findings and reasons.

11.      The applicant was invited to attend a hearing before the Tribunal on 18 June 2014. He failed to respond to the hearing invitation and did not attend the hearing. On 18 June 2014 the Tribunal affirmed the Department’s decision not to grant the applicant a Protection visa.

12. [In] April 2016 the Federal Circuit Court remitted this decision to the Tribunal by consent for reconsideration as the decision of 18 June 2014 was affected by jurisdictional error in that it could not be established by way of evidence that the Tribunal complied with the requirements of the Migration Act in providing notice of its invitation to the applicant to appear before the Tribunal.

13.      The applicant appeared before the Tribunal on 3 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

ASSESSMENT OF CLAIMS AND EVIDENCE

14.      On the basis of the applicant’s Pakistan passport presented at hearing and, in the absence of evidence to the contrary, the Tribunal accepts that he is a national of Pakistan and has assessed his claims against Pakistan as his country of nationality and receiving country.

15.      The Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal.  At the start of the hearing before the Tribunal the applicant affirmed that his evidence to date was true and correct and that he did not wish to change or add anything.

16.      In assessing the applicant’s claims, the Tribunal has carefully considered and weighed a range of independent material relating to Pakistan and the situation of Shias in that country, including the latest information prepared by the Australian Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes and that referred to in the delegate’s decision[1].

[1] DFAT, DFAT Country Information Report Pakistan, 15 January 2016; DFAT, DFAT Thematic Report Pakistan, 15 January 2016.

17.      For reasons outlined below the Tribunal did not find the applicant to be a truthful and credible witness about his experiences in Pakistan and the reasons he fears harm there. The Tribunal is not satisfied that the applicant is in genuine fear of persecution for a Convention reason; or that there is a real chance that he will suffer serious or significant harm on his return to Pakistan.

18.      The applicant’s central claim was that he feared serious harm in Pakistan because he converted from Sunni (Wahhabi Deobandi) to Shia Islam.  However, his evidence about his former religious beliefs was vague, simplistic and inconsistent, including with information from independent sources, raising doubts as to whether the applicant was, in fact, an adherent of Wahhabism. By contrast to his identification of his previous religion in his written claims as ‘Sunni (Wahhabi Deobandi)’, at hearing the applicant said it was ‘Wahhabi’, which he differentiated from Sunni Islam, saying that Wahhabis believed only what was in the Koran and the word of the prophet. While claiming that he had been an observant Wahhabi prior to his ‘conversion’ to Shi’ism, he could cast no light on the background of Wahhabism in Pakistan, saying only that it came from Saudi Arabia and was ‘very old’. The Tribunal also notes that, according to informed commentators, adherents to the Wahhabi tradition of Islam do not use this term to describe themselves[2]. This issue was raised with the applicant at hearing.

[2] John Pike, Wahhabi, Globalsecurity.org, notes that members of this form of Islam call themselves Muwahhidun ("Unitarians", or "unifiers of Islamic practice"). The teachings of Abd Al-Wahhab are more often referred to by adherents as Salafi, that is, "following the forefathers of Islam"; New World Encyclopaedia, Wahhabism,     As discussed with the applicant, the Tribunal is concerned that when asked to explain his Wahhabi or Deobandi beliefs and practice, he repeatedly spoke of what Wahhabis found wrong in Shia beliefs and practices (such as their love for the prophet’s family, their prayers to intermediaries and attendance at shrines). Importantly, the applicant failed to articulate what drew him to become a Shia, other than identifying ‘two or three things’ that he learned at the [name] Imam Bargha, which he said Wahhabis did not believe: the Twelve Imams; self-flagellation and grieving for martyrs, and the mourning for the martyrs in the Battle of Kerbala. From this, the Tribunal gained the distinct impression that the applicant was more familiar with Shia Islam, than Wahhabism from which he claimed to have converted.

20.      The applicant’s evidence about his attendance at the Wahhabi/Deobandi mosque shifted several times in the course of the hearing. Initially, he said that he stopped going regularly to his mosque when he learned at the Imam Bargha that what he had been taught about Islam was wrong. He could not remember when this was, but said variously, that it didn’t happen overnight, that he didn’t completely stop and was still going, but ‘rarely’.  However, later in the hearing, he told the Tribunal that he only stopped going to talks by the sheikhs but continued going to the Wahhabi mosque across the road from his house ‘every night’ or ‘quite often’ for evening prayer, as you could offer a prayer to Allah anywhere. The applicant confirmed that Sunnis could also go to a Shia mosque to offer a prayer and that they did so. In this context, the Tribunal queried why the applicant would tell the villager who saw him at the Shia mosque that he had gone to find out the difference between Wahhabi Deobandi Islam and Shia Islam, rather than simply saying that he was there to offer a prayer.

21.      The applicant gave inconsistent evidence as to the incidents that prompted him to leave Pakistan. In his written claims he stated that in early October 2012 a person from his village saw him coming out of the Shia Imam Bargha and that a group came to his house the following night, accusing him of adopting an infidel religion and threatening him. By contrast, he told the Tribunal that the person who saw him at the Imam Bargha was the son of the ‘Wahhabi/Deobandi leader’, who then led the group that came to his house and threatened to kill him. The applicant added that this was not the first time the son had seen him at an Imam Bargha, though he gave differing evidence as to when this was, first saying it was ‘a long time ago ’, then that it was ‘a few days before the second time’. In the Tribunal’s view, the applicant embellished his evidence in an attempt to enhance his claims. The applicant did not offer any plausible explanation when asked how he had managed to avoid being spotted by the Wahhabists until a couple of weeks before his Australian [temporary] visa came through, given his frequent attendances at the Imam Bargha over 6 to 7 years.

22.      The Tribunal drew to the applicant’s attention information in recent DFAT reports that Shia and Sunni communities in Pakistan were generally well-integrated; that Sunnis and Shias attended the same educational institutions, could pray in each other’s mosques and there were no legal barriers to interfaith marriage or religious conversion.

23.      The applicant’s claim that the majority of Muslims in Pakistan are Wahhabi or Deobandis, who regard Shias as infidels, is not borne out by country information, which puts them firmly in the minority (only 6% of Pakistanis are estimated to be Wahhabis and some 20% Deobandis).[3]

[3] Saleem Khan, London Metropolitan University, ‘Religious Nationalism and Sectarianism in Pakistan’; Wikipedia, Deobandis, citing John Pike, Barelvi Islam Globalsecurity.org,     The Tribunal notes that there were also inconsistencies in the applicant’s evidence regarding his employment in Pakistan. In his written claims, where he said that he worked as a [occupation] of [a] company in Sialkot after finishing his year at college in [year] until 2012. However, he told the Tribunal that he opened his own [business] in 2010; and that, after his father fell ill, he went to [country] in 2007 for six months to look after his father’s business; although [country] is not on the list of countries which the applicant visited in his application form.   

25.      Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant was has not been truthful about his experiences in Pakistan and the reason he fears harm there. The Tribunal is not satisfied that the applicant was ever an adherent of Wahhabi or Deobandi Islam who converted to Shia Islam, but considers that the he has been a Shia Muslim all along. Further, the Tribunal does not accept that the applicant was outed by anyone from his village while visiting the Shia Imam Bargha or that a group of people came to his house with stakes and shotguns, accusing him of adopting an infidel religion or threatening to kill him. It follows that the Tribunal is not satisfied that, if he returns to Pakistan, the applicant will be persecuted or killed by the fanatical Wahhabi and Deobandi Muslims for changing his religion from Sunni (Wahhabi Deobandi) to Shia Islam. In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a Protection visa in order to remain in Australia.

26.      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, in view of the substantial reduction in the level of generalised and sectarian violence in Pakistan since the government launched its counter terrorism military operation Zarb-e-Azb in June 2014, 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. DFAT also assesses that there is a willingness by Pakistani authorities to protect Shia communities.

27.      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 he 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.

1. The Tribunal has also considered the applicant’s claims under complementary protection.  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. In light of country information referenced at paragraph 26 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

   28.      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).

   29.      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).

   30.      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

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

   Mara Moustafine
   Member

   
   

   ATTACHMENT A: RELEVANT LAW

   32. 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.

   33.      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).

   34.      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.

   35.      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’).

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

   Credibility