1608711 (Refugee)

1608711 (Refugee) [2019] AATA 5412 (15 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608711
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Michael Hawkins
DATE:15 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 15 April 2019 at 7:30am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – minority Shia in Sunni-majority country – activity in Shiite organisations – attacks by Sunni activists – extra-marital relationship with unmarried woman – family dispute regarding property – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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

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).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 11 August 2014 and the delegate refused to grant the visa on 27 May 2016.
The applicant appeared before the Tribunal on 21 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
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.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Background:
The applicant is a [age] year old man from Chiniot, Jhang, Punjab, Pakistan.
The applicant is of the Shia Muslim faith, is of Punjabi ethnicity, and speaks Urdu, Punjabi and English.
The applicant is presently married. He was married in Pakistan in 2011.
The applicant completed his Primary and Secondary School education in Chiniot, [Pakistan]. He attended [a university] completing [Qualifications].
The applicant worked at [Employer 1] in Faisalabad from January 2006 to June 2014.
The applicant arrived in Australia [in] June, 2014, pursuant to passport [number], issued [in] 2013 and expiring [in] 2023. He arrived under a [temporary] visa.
The applicant lodged an application for a Protection visa on 11 August 2014.
The applicant did attend an interview with the delegate on 8 May 2014, and has provided additional information in support of his claims prior to the hearing as referenced in paragraph 38 below.
Claims:
The applicant’s claims are set out in a signed and witnessed Statutory Declaration of the applicant dated 11 August 2014. The Tribunal noted the claims were summarised by the representative in its pre-hearing submission as follows:
The applicant claims he has experienced serious harm in Pakistan, including physical harm, threats against his life and the lives of his family members and attempted extortion.
The applicant fears harm in Pakistan because he is a Shia Muslim. He claims this fear of harm is expounded by the fact that he has been a committed activist within his community and occupied a position of prominence.
The applicant claims he also fears harm because he has offended against [Ms A]’s family and Islamic customs by engaging in a sexual relationship with a woman, [Ms A], despite the applicant already being married under Pakistani law.
The applicant claims his fears regarding his activities as a Shia activist, and his sexual relationship with [Ms A], arise from convention-based reasons regarding the applicant’s religious status, the religious status of [Ms A]’s family and Pakistan more broadly.
The applicant claims he fears harm arising out of disputes among his immediate and extended family over money and property. A summary of these disputes and the applicant’s family is as follows:
·     The applicant has experienced physical harm, as well as threats of harm against himself and his wife, from his brother, [Mr B];
·     The applicant’s family has commenced Court proceedings against his uncle, [Mr C], relating to a land dispute and he fears he may be harmed by them in retribution;
·     The applicant’s uncles blame the applicant’s father for the death of their brother. The applicant fears he may be harmed by them in retribution.
The applicant maintains that if he is required to return to Pakistan, he will be seriously harmed by one or more of the following:
·     Anti-Shia groups, including but not limited to Ismali Jamiat-e-Talab, L-e-J, TTP, et cetera;
·     Anti-Shia individuals, including but not limited to the person named “[Mr I]”;
·     Family members of [Ms A], the woman with whom the applicant had a sexual relationship;
·     His brother, [Mr B];
·     His uncle, [Mr C], and his uncles’ family members;
·     His father’s cousins.
The applicant claims his family have continued to receive threats against him since he has been in Australia.
The applicant claims there is nowhere in Pakistan where he could avoid being harmed. He also claims that there is nowhere he could obtain effective protection from the authorities against those who may wish to harm him.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicant’s protection visa application forms completed and signed on 31 July 2014, lodged on 11 August 2014 (“visa application”);
- The applicant’s identity documents being copy of passport;
- Documents submitted by the applicant all translated:
- Record of interview with the delegate dated 6 March 2015;
- The protection visa decision record (‘delegate’s decision record’) dated 27 May 2016;
- Additional submissions from the applicant including:
oInjury Report.
oHospital Report.
oOutdoor Patient Report.
oPress clipping, dated 11 February 2015.
oPhotos of applicant attending meetings and protests.
oPhotos of applicant with fiancée.
oSubmissions from applicant’s Representative, undated.
oStatutory Declaration of the applicant, dated 12 March 2019.
oStatutory Declaration of [a named person], dated 12 March 2019.
oLetter of Reference from [a second named person].
oLetter of Reference from [a third named person].
oLetter of Reference from ISO, dated [March] 2017.
oStatement of Membership of MWM, dated [June] 2014.
oStatement of Reference and of Membership of MWM, dated [August] 2016.
oStatement of Membership of MWA, dated [March] 2019.
oReceipt of Membership Dues to MWA.
oPolice Report, dated [June] 2014.
oDeath Registration Certificate.
oPolice Report, undated.
oPolice Report, dated [August] 1981.
oPolice Report, undated.
oPolice Report, dated [February] 2015.
oCourt documents from Lahore High Court.
oOrganisational Structure for MWM
- Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) Country Information Report on Pakistan, published on 20 February 2019 (the DFAT Report).
Country of reference / receiving country
The applicant claims to be Pakistani national. Based on the copy of his passport and provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 21 March 2019. He was represented. The hearing was assisted by an interpreter in the Urdu and English languages.
The Tribunal asked the applicant about the completion of his Protection visa application forms. The applicant said the forms were completed by his migration agent at the time. The Tribunal asked the applicant whether he understood his claims contained in the application and the other information in the forms. He replied that he did. The applicant said he signed the forms himself.
The Tribunal read to the applicant a summary of his claims as set out in paragraphs 29 to 37 above. The Tribunal asked the applicant if they were accurate and complete. He said they were.
The Tribunal noted that the applicant had previously made two claims in relation to being a returnee and returning with western views. The Tribunal asked the applicant whether he was maintaining those claims in the face of Country Information contained in the Delegate’s decision from the DFAT Report that suggested:
· That individuals are not subject to discrimination or violence on the basis of having spent time in the west; and
· Returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.
After a short adjournment, the applicant’s Representative confirmed that the applicant would not be prosecuting those two claims.
The Tribunal discussed with the applicant the findings of the Delegate. The Tribunal explained to the applicant that it had listened to the Record of Interview between the Delegate and the applicant and stated that the Tribunal was inclined to accept many of the findings of the Delegate that were favourable to the applicant. The Tribunal was prepared to accept the Delegate’s findings as to the following:
·     The Tribunal is satisfied that the applicant is a Shia from Chiniot, Jhang, Punjab;
·     The Tribunal is satisfied that the applicant obtained a [Qualification] from [a University] [in] Pakistan;
·     The Tribunal accepts that the applicant was a member and supporter of the ISO;
·     The Tribunal accepts that the applicant was a member and supporter of the MWM Party;
·     The Tribunal accepts that the applicant would have experienced some form of low level religious discrimination during his childhood;
·     The Tribunal accepts that the applicant may have received some form of adverse attention from rival student political groups;
·     The Tribunal accepts that the applicant was responsible for organising religious observances at [a Shrine] between 2011 and 2014.
The Tribunal discussed with the applicant and his Representative that it would like to focus the hearing on those findings that were not favourable to the applicant.
The applicant and his Representative accepted as appropriate that course of action.
The Tribunal asked the applicant whether he had tabled all Country Information that he intended to rely upon. The Representative confirmed that was the case.
The Tribunal also confirmed that it would not seek to rely on any Country Information outside that which had been referred to in the Delegate’s decision and has had been submitted to the Tribunal by the applicant, except that it noted the DFAT Report had been updated since the Delegate’s decision.
The Tribunal identified that there were some claims contained in the applicant’s Representative’s submissions that had the appearance of being new and having not been previously raised in the applicant’s Protection visa application or in his interview with the Delegate.
The Tribunal queried the nature of the threat that the applicant claimed had been made to his wife and child. The applicant replied that it was a threat made by his brother. The Tribunal queried whether the threat was actually made directly to his wife and child. The applicant replied no, that it was made to him. He went on to add that if he returns to Pakistan, his son will be implicated in the family dispute.

In relation to his wife, he said that her threat is that of a Shia and is bound up in the general threat to Shias. He says that this causes her mental stress.
The Tribunal noted that there was no mention of his wife, or of his wife’s fears and his fears for her in his Protection visa application. The Tribunal asked whether they had recently reconciled. The applicant replied that it was not a case of them ever having separated, they were always in a committed relationship. The Tribunal asked again why she was not covered in the Protection Visa application. He advised that his lawyer never mentioned it.
The Tribunal also noted there had been no reference to a claim of extortion in his Protection Visa application. The applicant replied that that claim related to his friend, [Mr H], extorting him for money for the photos that he had of the applicant and [Ms A].
The Tribunal queried the applicant in relation to his claims that threats have continued against him since he has been in Australia.
The applicant responded that his parents are still receiving threats for him from extremists who have an issue with the applicant organising Shia protests. He claims that a threat was made to his father which was witnessed by his cousin. He states that the extremists will not accept that the applicant has left Pakistan and he claims that they won’t forget.
The Tribunal queried the applicant about his involvement with the ISO. The applicant states that he will re-engage with the ISO if he returns to Pakistan, but obviously not as a student but through the MWM.
The applicant also claimed to work for, but is not a member of, IO, which is the Immamia Organisation. Similarly, he has worked for, but is not a member of, the TNFJ.
The Tribunal inquired about the applicant’s involvement with the MWM. The applicant advised that he joined the MWM in 2009 as a member. He claims that he then became a senior member.
The Tribunal discussed the Delegate’s concerns about his involvement with the MWM, that his role was not of such importance as to give him a profile. The applicant disputed this. He claimed that as a senior member of the MWM, he had an important role and one which gave him a high profile within MWM. Putting it in context, the applicant stated that he is at the coalface of the organisation, the person that is in contact at street level with members and dissidents.
He stated that if he returned he would re-engage with the MWM and would likely be appointed to [an office bearer] level.
The Tribunal inquired about the hierarchy of the MWM and the applicant sought to explain it. However, without a diagram, the conversation became complex and the Tribunal confused. The Tribunal asked for, and the applicant agreed to supply, a diagram outlining the hierarchy of the MWM and his position within it.
Post-hearing, the Tribunal did receive a very detailed organisational chart of the structure of the MWM. The chart plotted the applicant’s position at [an office bearer] level.
The Tribunal noted that the MWM has a very sophisticated organisational structure.
The Tribunal asked the applicant about his political and religious involvement in Australia. The applicant explained that there was no religious political party operating in Australia. He stated that he has strong participation in religious organisations and presented Certificates and letters of membership of a registered Shia organisation with which he is involved in [Australia], a membership of [an organisation].
The applicant spoke of the numerous processions in public places that he has participated in which protested against the killing of Shias all over the world. He stated that he participated in processions against ISIS, the Taliban and other terrorists active in Pakistan.
The Tribunal noted that these activities took place in Australia and would unlikely be noticed in Pakistan.
The applicant was very quick to dispute the Tribunal’s observation, stating that the protests and processions were televised and placed on [the internet].
The applicant spoke quickly and enthusiastically about a protest he attended which objective was to seek a shrine for Hazrat Fatima which they want built in Saudi Arabia. He states that he has also participated in a protest against LeJ.
The Tribunal asked the applicant about the protagonist, [Mr I].
The applicant gave the Tribunal a very detailed profile of [Mr I], stating that he is a terrorist and a member of the LeJ and TTP.
The applicant knew where [Mr I] lived, being [number] kilometres from [a location]. The applicant stated that it is [Mr I]’s job to disrupt any MWM observances at the shrine.
The applicant further explained that since 2010, Shias used to have central processions to mark mournings which took place at the shrine. The applicant used to organise the processions and would organise prominent guest speakers to address the crowds.
The applicant stated that [Mr I] threatened the applicant twice and then finally attacked the applicant.
The Tribunal inquired firstly about the threats. The applicant replied that they were general threats and warnings that [Mr I] told the applicant that the religious work he was doing is not good for his life.
The Tribunal asked the applicant about the circumstances leading to the attack upon him.
The applicant replied that the date of the attack was [June] 2014. He claims he left the base of the shrine at about midday. He left riding outbound along the “link” road. He stated that [Mr I] was on the main road which ran parallel to the “link” road. The applicant claims that [Mr I] stopped his bike in front of him. He stated that [Mr I] fired a gun at the applicant’s feet and also in the air. The applicant states that by this time, two other men had arrived and these two men and [Mr I] beat him.
The applicant states that fortunately for him, his cousin was coming along the “link” road behind him, but not so close as to witness the attack. He states his cousin fired his gun in the air and [Mr I] and his gang took off. The Tribunal asked what happened after that. The applicant replied that he went immediately to the Police to lodge an FIR. He states the Police did an initial examination of him and noted his injuries. The applicant then went to the hospital. After checking out of the hospital, the applicant and his cousins went to the applicant’s sister’s house in Faisalabad. He stated that his sister lives in a village [number] kilometres outside Faisalabad.
The applicant stated that he stayed with his sister. He stated that he did not return to work at [Employer 1].
The Tribunal challenged the applicant on the state of his employment, noting that his Protection Visa application stated that he was working at [Employer 2] from January 2012 up until June 2014 in Faisalabad. The applicant agreed with the Tribunal, stating that he worked at [Employer 1] and also at [Employer 2] as a freelancer. He did cease his employment with [Employer 1] from that time.
The Tribunal discussed with the applicant his making of the [temporary] Visa application. The Tribunal noted that the applicant’s [temporary] Visa was granted on 8 May 2014 but that he did not arrive in Australia until [June] 2014.
The Tribunal queried the delay in leaving Pakistan given that he had a valid visa from 8 May but did not depart until nearly two months later. The Tribunal queried this given the applicant’s claim that he feared for his life following the attack upon him by [Mr I]. The Tribunal queried whether, given that delay, the applicant’s fears were genuine.
The applicant gave many reasons for the delay. He stated that his first objective was to organise the activity at the shrine [in] May 2014. He said that was a very important task and one that he was committed to. He also stated that he was to be a witness in the Court action and stated that he could not abandon his father. When asked about the date of that Court action, the applicant could not remember the exact date but stated it was around the beginning of June.
The applicant also stated that he was working in [Employer 1] and he had to give notice. However, what was a greater imperative was that he had [internal procedures] in process and he could not leave [Employer 1] until they had been finalised. Finally, he stated that his [reason for visiting] Australia was not due to start until 14 July 2014 and it was his intention to leave Pakistan in mid-July. He stated that following the assault upon him by [Mr I] and having the [internal procedure] approved, he left as soon as possible. He stayed with his sister from [June]. Hence, his departure was ahead of schedule.
The Tribunal considered the newspaper articles that had been tendered by the applicant. It noted Country Information referred to by the Delegate that stated that newspaper articles were extremely easy to fabricate. The applicant replied that that may be the case but when reporting crimes in newspapers, there are very strict protocols. He stated that if an FIR is falsely reported, the Police can prosecute the newspaper or newsagency. So whilst there might be fabricated civil cases, he claimed that there are rarely fabricated criminal stories. The applicant referred to two newspaper articles provided, one being a murder attack on a religious leader, and a second article in which the applicant was directly named as being involved in an assault.
The Tribunal queried the applicant as to the date of his assault given his evidence that he wanted to organise the Maatam observances [in] May 2014. The Tribunal queried the applicant as to whether he was assaulted after those observances. The applicant replied that he and his cousin had been at the shrine together [in] June 2014 simply observing their faith. It was not connected with the Maatam observances which had concluded a couple of weeks before. The Tribunal noted that he left Pakistan two weeks after the attack by [Mr I].
The Tribunal asked the applicant about his relationship with [Ms A].
The applicant stated that he had known [Ms A] for some time. He said his wife did not know about this relationship at the time. He claims he entered into a temporary marriage with [Ms A] in June 2012. He stated that his wife learned about it at the end of 2012. He said the temporary marriage was for two years.
He said his friend, [Mr H], who had arranged for he and [Ms A] to meet at his house, took photos of them in compromising positions. He said that he had known [Mr H] for some time as they worked together at [Employer 1]. He said he had never had an argument with [Mr H]. He stated that [Mr H] demanded [money] from him or he would release the photos. The applicant stated he was very surprised by this and noted that sometimes you just don’t know people.
The applicant stated that he had received many threats since from the brother of [Ms A]. They were mostly threats by telephone.
The Tribunal asked the applicant about the nature of a temporary marriage contract. The applicant replied that it is permissible to have a temporary marriage even while you are married. He stated that he and [Ms A] had an agreement to keep their relationship hidden from their family members. They used to ask friends if they could come to their house in order to spend time together. And that is how he came to be at [Mr H]’s house. He said it was a couple of weeks after being at [Mr H]’s house that he received a telephone call from [Mr H] demanding money and stating that he would offer the photos to [Ms A]’s brother if he was not paid. The applicant stated that he did not have any money and did not intend to pay it. It was shortly after this that [Ms A] was assaulted by her brother and suffered bruising. He said in January 2014, whilst he was travelling home, he noticed five people started following him on motorbikes. They yelled “Stop”, but the applicant did not stop.
The applicant then said that he received two calls from [Ms A]’s brother who claimed responsibility for sending the people on the bikes after him. He stated that [Ms A]’s brother would kill the applicant and [Ms A] if the photographs were made public. He said he had no contact with [Ms A] after that. The applicant then offered that [Ms A] made contact with him by [Social media] at the end of 2017. He also added that his wife knows about it.
The Tribunal asked if [Ms A] had since married. The applicant replied that she was still single.
The Tribunal queried whether [Ms A]’s brother would still be interested in him now in 2019 given that five years had since elapsed.
The applicant replied that it is a serious matter of family honour that will drive [Ms A]’s brother to take action against the applicant if he returns to Pakistan.
The Tribunal noted that [Ms A]’s brother had made no contact with the applicant during that five year period.
The Tribunal discussed with the applicant the issues surrounding the family dispute.
The applicant stated that there was a Court decision in favour of his father [in] November 2018. He stated that his brother is appealing against that decision.

100. The Tribunal asked the applicant that given he is in Australia, was he still interested in the outcome. The applicant replied that he was as it had succession consequences whereby he might inherit the land.
101. The applicant claimed that he and his brother owned a house ([number]) which they jointly purchased out of the proceeds of the Estate of their late mother who passed away in 1992. The applicant states that he, his brother and his father lived in [the house].
102. The applicant stated that his father owned agricultural land. He states that in 2004 his father transferred that land to the applicant and his brother. The applicant stated that the land was transferred at this time as his father was worried about a potential for a dispute if the land was transferred after he had passed away.
103. The applicant states that his brother had been unemployed since 2001 and was supported by his father. The applicant states that he also contributed towards supporting his brother until he became married in 2011 and advised that he could no longer afford to do so. The applicant states that at this time his decision to stop supporting his brother caused a lot of tension between he and his brother.
104. As a result of that tension, the applicant’s father demanded that the agricultural land be transferred back to him. This was done with the father giving the applicant and his brother 3,000,000 Rupees. The applicant states that later in 2011 his brother commenced Court proceedings against his father, stating that the documents that transferred the agricultural land to the father were fraudulent. The brother stated that he had already gifted his share of the property to his wife earlier than the allegedly forged transfer to the father. The applicant stated that this caused a total breakdown in the relationship between his brother and his father and himself. Further, his brother became violent towards him and made threats against the applicant’s wife as well. He states that on two or three occasions, his brother grabbed him and punched him. He also claims that his brother fired a shot at him. The applicant reported this to the Police and the applicant produced a copy of an FIR in support of this claim.
105. In 2014, the applicant provided a statement in support of his father in relation to the Court case. Following that, the threats from his brother became more severe and frequent.
106. The applicant stated that given the tension with his brother, he decided to buy out his brother’s share of [the house]. He states that his brother did not do this willingly, but following the intervention of a number of family members, he was convinced to sell his interest to the applicant. The applicant states that whilst this resolved the issue of who owned [the house], it only served to further inflame his brother’s animosity towards him. As earlier stated, the Court awarded possession of the agricultural land to the father in late 2018. The applicant states that his brother has not accepted that decision and has appealed the Court’s ruling.
107. Post-hearing, the applicant provided a copy of an extract of the Court proceedings confirming his aforementioned claims and statements.
108. The Tribunal explored the applicant’s claim relating to disputes with extended family members.
109. The applicant stated that in 1981, his paternal uncle was killed by his cousins over a dispute regarding marriage and land. He claims his father provided evidence against these people and this contributed to them being convicted. He stated the murderers were released from prison in 1994. The applicant claims that his father’s cousins still oppose his father and may seek to harm not only him, but the applicant as well because his father provided evidence against them.
110. The applicant states that in 1994, his paternal step-uncle was murdered. He states his father was blamed for the murder by his remaining stepbrothers. They were in turn supported by the people who were convicted of killing the paternal uncle in 1981. A Police complaint was lodged and the applicant’s father was sentenced to 25 years imprisonment for the murder of his stepbrother (the applicant’s step-uncle). The applicant’s father was released early due to his age in 2003.
111. The applicant further states that in October 1998, his first cousin was killed by his uncle, [Mr C], and two of his sons due to a land dispute. The men were released from prison in 2002, allegedly after pressuring the victim’s mother by making threats against the life of another of her sons. The applicant states that whilst this dispute does not relate to him, [Mr C] fraudulently transferred agricultural land belonging to the applicant’s mother. His mother had received this land in her inheritance after the death of her father. The applicant states that his family have commenced Court proceedings to recover the land. The applicant fears [Mr C] and his family, especially given the fact they have killed their own relatives in the past.
112. The applicant states that in 2008, the brother-in-law of his step-uncle was killed as part of this ongoing dispute. The applicant states he was killed by his step-uncles and their sons in Pakistan. He states these kinds of revenge killings can go on for generations. Accordingly, the applicant is fearful that there is a risk that he will be harmed as a result of this dispute if he were to return to Pakistan.
113. The Tribunal turned to the issue of relocation.
114. The applicant stated that he is a member of a religious sect - if he moved to any other city, he will participate in mosques and protests, as he has done so in Australia.
115. The applicant states that just last week, one Shia, in Rawalpindi, was targeted, even after he had moved 1,000 kilometres to be safe. The applicant states that he will be targeted by militants. He states that he has to work and will be unable to simply hide for the rest of his life. He states that he will be tracked on social media. He says that the TTP kill children of the people they are targeting.
116. He further states that his wife was in Pakistan at the time he applied for a Protection Visa. Since joining him in Australia, his wife has given birth to their first child on [date]. The applicant states that they are expecting their second child later this year. He believes that even if there is an area in Pakistan where he can avoid being persecuted, but he does not believe there is, it would be extremely difficult to relocate away from Faisalabad, which is where his wife and he have support of their respective families.
117. The applicant stated that as much as he believes the risk to him in Faisalabad is immediate, he says the risks exist throughout Pakistan. He states that members of the Shia community who are involved in public life are targeted everywhere in Pakistan.
118. He noted that [in] April 2014 [a named] organiser in the MWM, was murdered by a number of people in Faisalabad. He was involved in organising MWM events, although not at [the Shrine].

119. The applicant also stated that [in] December 2013, [a named person] who was responsible for arranging mourning services in Chiniot, was murdered by [armed] men during a mourning procession. He also states that [in] December 2014, MQM leader [named], was killed as he returned from [deleted]. He states this occurred 10 days after the murder of the Vice-President of the MQM. And again, he states that [in] February 2017 [an office bearer] of MWM in [District], was shot dead. The applicant also states that the reporting of this incident stated, “Despite the warning, the Noor Shar Police did not take precautions or enhance security of religious scholars who could be the soft target for terrorists” and provided the press cutting in support.
120. At the conclusion of the hearing, the applicant’s Representative offered the following submissions:
·     The Representative took issue with the Delegate’s findings that questioned the authenticity of the FIRs submitted by the applicant. Whilst accepting the DFAT Report and its comments about the prevalence of fraud in Pakistan, the Representative stated that it was not open to the Delegate to rely on the DFAT Report solely to make a finding when there is no evidence of fraud. The Representative said that the Tribunal should accept that the documents are authentic.
·     The Representative submitted that the attack in relation to the faith site and after a faith service is consistent with Country Information.
·     In relation to the applicant’s profile, the Representative submits that if the applicant was attacked, then he must be of sufficient profile. Accordingly, the Representative submits that the Delegate was wrong to conclude that the applicant is not a high profile Shia community member, party member or high profile supporter.
·     The Representative asks the Tribunal to note that the applicant was [an office bearer] of the ISO for a period of time which would indicate that he did have seniority within the organisation. To have been [an office bearer], he must have had a profile in both the organisation and the community.
·     The Representative submits that notwithstanding the hierarchy of the MWM, it is the fact that the applicant is at the coalface doing the work - he is the face of the MWM.
·     The Representative submits that the applicant has been an advocate for the protection of Shias for more than 20 years.
·     He states that he will re-engage in his religious political activities if he returns to Pakistan.
·     He states that the applicant’s profile will be reinstated upon his return.
·     In relation to relocation, the Representative submits that the applicant will always be engaged in advocating for the rights of Shias and Shia communities. He states that this is not a case of a normal Shia attending mosque. The applicant is an activist.
·     The Representative submits that it is not practicable to relocate with [an infant] child and with a pregnant wife due to have their second child this year.
·     The Representative submits that the applicant has no substantive family support networks outside Faisalabad and neither he nor his wife have family outside of Faisalabad.
121. Post-hearing, the applicant’s Representative submitted a number of witness statements.
122. The witness statements were from residents of Pakistan as follows:
·     [Mr D] - This statement confirmed the following:
·    He is the cousin of the applicant;
·    He is [an office bearer] for the Faisalabad District. Prior to that, he was [an office bearer] of the MWM in [location];
·    He confirmed that the applicant was involved in the MWM from the time he left university and until the time he came to Australia;
·    He confirmed that from about 2010 the applicant was the person who was responsible for recruiting members of the community, encouraging members of the community to attend events and organising events such as religious events, grieving events when people were killed and protests;
·    The applicant was also involved in organising the Maatam observances until 2014;
·    He confirmed that he was with the applicant at the [Shrine] [in] June 2014 for the purpose of paying their respects. He confirmed he left the shrine shortly after the applicant and they were each travelling to Faisalabad;
·    Not far from the shrine, he confirms he noticed that the applicant was being attacked by the side of the road by three men, one of whom he recognised as [Mr I], a well-known member of LeJ. He confirms that upon noticing the fight, he stopped his bike and fired his gun, which caused [Mr I] and the other two men to flee. He confirms he always carries his gun with him for protection;
·    He confirms that after that incident, he accompanied the applicant to the Police station in Chiniot and then to [Hospital] in Chiniot. He confirms that after the applicant was discharged from hospital, the applicant moved into his house;
·    [In] February 2015, he states he was in a car with the applicant’s father when a number of people shot at his car. He says that although the car crashed, he and the applicant’s father were not seriously injured. He also confirms there is significant ill-will between the applicant and his brother who has, in the past, shot at the applicant during an argument.

·     [Mr E]:
·    He states he is [an office bearer] of the MWM for the State of Punjab;
·    He confirms he has known the applicant for approximately eight or nine years, primarily through his work for the MWM in Faisalabad;
·    He confirms the applicant was responsible for managing members, coordinating community events, demonstrations et cetera, including the Maatam observances at the tomb of [the Shrine]. He confirms the applicant had a senior position in the MWM in Faisalabad and required a lot of direct community engagement and that he was well-known within the Shia community in Faisalabad;
·    He confirms he was aware that the applicant was attacked by members of LeJ and is lucky to be alive. He notes that attacks against Shias in Pakistan are a big problem and the applicant’s safety cannot be guaranteed if he were to return. He notes that he has been able to remain safe only because he has two bodyguards and further notes that the applicant will not have that luxury and will be vulnerable to attack.

·      [Mr F]:
·    He confirms he has known the applicant since their university days. He confirms that he and the applicant were involved in the ISO whilst at university;
·    He confirms that the applicant organised demonstrations and other community events, especially at times when something was going wrong in the community;
·    He confirmed that the applicant was appointed [an office bearer] of the ISO in Faisalabad in 2004 for a period of approximately six weeks;
·    He confirms that the applicant received threats against his life from anti-Shia groups;
·    He confirms he was abducted in 2008 by Ismali Jamiat-E-Talab and they questioned him regarding the applicant. He confirms they were questioned on numerous occasions by Police regarding the applicant’s activities;
·    He confirms that the applicant became involved in the MWM after university;
·    He confirms that the applicant was responsible for organising religious gatherings at the tomb of [a Shrine] which are held in May each year;
·    He confirms that the applicant received a number of threats because of his work in the community and was attacked close to [the Shrine] about five years ago.

·     [Mr G]:
·    He confirms he has known the applicant since they travelled to Iran as part of the ISO;
·    He confirms that the applicant invited him to attend observances at the tomb of [the Shrine], and that as he was a religious scholar, he had been invited to address the crowd;
·    He confirmed that he attended the tomb in 2011, 2012 and 2014 at the request of the applicant;
·    He has formed the view that the applicant is active and well regarded by the Shia community in and around Faisalabad and he is aware that the applicant has performed many services for the MWM;
·    He confirms that he is aware that the applicant was attacked shortly after the 2014 observances and believes the applicant may be the victim of a similar attack if he returns to Pakistan.

Assessment of Claims and evidence, and findings:
123. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
124. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

125. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

126. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
127. The Tribunal was very mindful that whenever evidence is taken in a language other than the first language of the applicant or through an interpreter there is always the chance that there may be differences in meaning and nuance. The Tribunal noted that the applicant speaks Urdu, Punjabi and English. Very regularly, the applicant spoke to the Tribunal in fluent English. He regularly answered questions without the assistance of the interpreter. The applicant presented as calm and mature and cool-headed. The Tribunal was satisfied that the applicant spoke very good English and considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.
128. The Tribunal considered first the applicant’s claims relating to his religion and his membership of ISO, IO and MWM.
129. The Tribunal had discussed Country Information with the applicant as follows.
Article 20 of the Constitution provides that ‘subject to law, public order, and morality, —(a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’. Article 36 guarantees ‘the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services’.[1]
[1] DFAT Report, paragraph 3.70
The provisional results of the 2017 national census recorded that Muslims comprise 96.28 per cent of the population, of whom approximately 85 to 90 per cent are Sunnis and 10 to 15 per cent Shi’a, Christians comprise 1.59 per cent, Hindus 1.6 per cent, Ahmadis 0.22 per cent and others (including Sikhs, Parsis (Zoroastrians), Baha’i and Buddhists) 0.32 per cent. Many religious minority groups have told DFAT these numbers are inaccurate, and minority groups (most notably Christians) are larger than the data indicates.[2]
The 2018 annual report of the United States Commission on International Religious Freedom (USCIRF), which designated Pakistan as a ‘country of particular concern’, observed increased incitement in the media of intolerance against religious minorities. USCIRF found the government failed to provide adequate protection to religious minorities and itself perpetrated systematic and egregious violations of religious freedom. USCIRF observed that religious minorities in Pakistan, including Hindus, Christians, Sikhs, Ahmadis and Shi’a Muslims, continued to face societal discrimination and attacks from extremist groups. USCIRF also expressed concern about the impact on religious minorities of the entry of some fundamentalist religious parties into the political arena ahead of the 2018 elections. Some local groups, noting the ambivalent position of the military, share these concerns.[3]
While there has been a declining trend in sectarian violence since 2014, the Pakistan Institute for Peace Studies (PIPs) recorded at least six terrorist attacks deliberately targeting religious minorities in 2017, killing 13 and injuring 57 people. Four of these attacks targeted the Ahmadi community across three cities in Punjab, and one, claimed by ISIL, targeted the Christian community in Quetta. PIPS reported five incidents of faith-based mob violence in 2017.[4]
DFAT assesses, with the exception of the Ahmadi and Hazara communities, Pakistanis are generally able to practise their religion without official interference or discrimination. However, DFAT notes a trend of increased religious conservatism and intolerance towards religious minorities in Pakistan, which is likely to continue in 2019. Most religious minorities (with Ahmadi and Hazara exceptions noted above) face a moderate risk of societal discrimination and violence targeting religious ceremonies and places of worship. However, DFAT assesses that the risk of violence and societal discrimination based on religion varies across different groups and locations within Pakistan.[5]
Pakistani Shi’a live throughout the country in urban centres, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. While Shi’a are not a majority in any of Pakistan’s four provinces, they are a majority in the autonomous region of Gilgit-Baltistan.[6]
DFAT has no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector. However, some Shi’a perceive discrimination against Shi’a gaining roles at higher levels of some organisations. Overall, DFAT assesses that Shi’a who are not Hazara or Turi generally do not face discrimination based on their religious affiliation when seeking employment. Low-level anti-Shi’a discrimination does occur at the community level, and can manifest in violence or damage to property.[7]
Sunni and Shi’a students attend the same public and private education institutions. Students must declare their religious affiliation for entry into both public and private institutions, including universities. Religious bias in public education predominantly affects non-Muslims, but Shi’a groups have raised concerns that the public school syllabus and prescribed textbooks contain depictions of Sunni prayer rituals, and omit prominent historical Shi’a figures.[8]
Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation.[9]
DFAT understands that the Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. Military escorts can be infrequent. DFAT assesses that Shi’a pilgrims travelling by road to Iran through Balochistan without military escort face a moderate risk of violence from sectarian militants.[10]
Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups. High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.[11]
[2] DFAT Report, paragraph 3.72
[3] DFAT Report, paragraph 3.78
[4] DFAT Report, paragraph 3.79
[5] DFAT Report, paragraph 3.80
[6] DFAT Report, paragraph 3.90
[7] DFAT Report, paragraph 3.96
[8] DFAT Report, paragraph 3.97
[9] DFAT Report, paragraph 3.98
[10] DFAT Report, paragraph 3.103
[11] DFAT Report, paragraph 3.104

130. The Tribunal also discussed Country Information contained in the Delegate’s decision which stated that Shias are well-represented among high level professionals in Pakistan such as doctors and lawyers.
131. The UK Home Office states that there is little societal discrimination that would restrict Shias in their daily life … The greatest threat for Shias in Pakistan is sectarian violence and targeting by militants, although the intensity and frequency may vary from region to region. There is a general willingness by Pakistani authorities to protect Shias. During Moharram, law enforcement authorities are known to provide security for participants. Armed Forces have provided security for Shia pilgrims travelling to and from Iran. There are no discriminatory laws or government policies against Shias in Pakistan; neither are there any legal restrictions on freedom of religion for Shias.[12]
[12] Country Information and Guidance, “Pakistan Religious Freedom”, UK Home Office, 16 July 2014.
132. The applicant’s representative submitted the following country information.
Violence Against Shias in Pakistan
133. Security is volatile in Pakistan, with civilians targeted by numerous militant and sectarian organisations, as well as political and other forms of violence, in spite of authorities' attempts to combat this. Even with declining rates overall, the total number of terrorism-related incidents and deaths in Pakistan remains objectively high and Shias are at elevated risk as independent information below demonstrates.
134. In its most recent report on Pakistan, released in February 2019, the Department of Foreign Affairs and Trade (DFAT) reports the following:
'Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi'a traditionally represented a higher proportion of the casualties. Shi'a continue to face a threat from anti-Shi'a militant groups, including LeJ, Sipah e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP.'[13]
[13] Department of Foreign Affairs and Trade 2019, DFAT Country Information Report Pakistan, published: 21 February 2019, p. 36.

135. In its 2017 Country Reports on Human Rights Practices regarding Pakistan published in March 2018, the US Department of State assesses:
'Militant and terrorist activity continued, and there were numerous suicide and bomb attacks in all four provinces and FATA. Militants and terrorist groups, including the Pakistani Taliban (Tehreek-e-Taliban Pakistan, or TTP), Lashkar-e-Jhangvi, and the Islamic State Khorasan Province (ISIS-K) targeted civilians, journalists, community leaders, security forces, law enforcement agents, and schools, killing hundreds and injuring thousands with bombs, suicide attacks, and other forms of violence. Militant and terrorist groups often attacked religious minorities. A.low-intensity separatist insurgency continued in Balochistan. Security forces reportedly committed extrajudicial killings in the fight against militant groups ...

Overall Conclusion:
178. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
179. Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal is not required to consider the alternative criterion in s.36(2)(aa).
DECISION
180. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Michael Hawkins
Member

[2019] AATA 5412

15 April 2019

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