1614343 (Refugee)

[2020] AATA 778

1614343 (Refugee) [2020] AATA 778 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614343

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Jason Pennell

DATE:11 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2020 at 4.36pm

CATCHWORDS

REFUGEE – Protection visa – Pakistan – Sunni Muslim man – association with an Ahmadi – land dispute – a person who suffers from a mental illness in Pakistan – vague evidence – health care accessible in home country – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 225
MIEA v Guo (1997) 191 CLR 559 at 596
Prasad v MIEA (1985) 6 FCR 155

Kopalapillai v MIMA (1998) 86 FCR 547

WAKZ v MIMIA [2005] FCA 1065

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 on 17 August 2016 to refuse to grant the visa applicants Protection (Class XA) Subclass 866 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 7 August 2014. The delegate refused to grant them a visa on the basis that each applicant, respectively, is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa).

3. The applicants appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] (the second applicant and the primary applicant’s wife) and Mr [B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The second applicant, Ms [A], the third applicant, Ms [C], and the fourth applicant, Mr [D], have no protection claims of their own and will be considered as a member of the same family unit under s.36(2)(b) of the Act.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

7. 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).

8. 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.’

9. 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.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] 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.

    [1] s.91R(1)(b)

    [2] s.91R(1)(c) of the Act

12. 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.

13. 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.[3]

    [3] s.91R(1)(a) of the Act

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4] 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.[5]

    [4] s.5(1) of the Act

    [5] s.36(2B) of the Act

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of Complementary Protection Guidelines and 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.

    CLAIMS AND EVIDENCE

20. The issue in this case is whether the first-named applicant (herein ‘the applicant’) meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity and country of reference

21. The applicant claims that he was born on [date] in Kasur, Pakistan. The applicant provided a certified copy of his passport,[6] issued [2010], to the Department that confirms the applicant’s evidence as to his date and place of birth. In addition the applicant provided the Department with personal and financial documentation, including qualification documents from educational institutions,[7] which provide details of the applicant’s identity that are consistent with his passport. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. 

    [6]    Department [File]

    [7]    Op Cit @ ff.83-95

22. Accordingly, the Tribunal finds that the applicant is a citizen of Pakistan and that as such his protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.

    Migration history

23. Between 2002 and 2012 the applicant made multiple trips from Pakistan to various [countries]. The applicant’s evidence was that he made the trips as a tourist. His evidence to the department was that he travelled to [Country 1] to visit family.    

24. The applicant first arrived in Australia [in] November 2011 as the holder of a [temporary] visa and departed [in] December 2011. The applicant then arrived back in Australia [in] August 2013 and departed [in] September 2013 on another [temporary] visa. The applicant then arrived for the final time [in] July 2014 on the same [temporary] visa. The applicant’s dependants accompanied him on the final two trips.

25. The applicant lodged his protection visa application on 8 August 2014 and was granted a bridging visa, on which he currently remains in Australia.

    Supporting documentation

26. In support of his application, the applicant provided the following documentation:

    (a)Form 866B – applicant’s Application for Protection visa (including the applicant’s statement attached).[8]

    [8]    ibid @ f.14

    (b)Forms 886 (x3) - Applications for a member of the family unit in relation to the second, third and fourth applicants.

    (c)Certified copies of all applicants’ passports.[9]

    [9]    ibid @ ff.31-43

    (d)Two letters dated [December] 2010 from [Employer 1] confirming Ms [A]’s [employment] with [them] from [September] 2003 to [December] 2010.[10]  

    [10] ibid @ ff.45-46

    (e)Letter dated [May] 2011 from [Employer 2] confirming Ms [A]’s [employment] commenced with [Employer 2] [in] December 2010, upon the merger of [Employer 2] and [Employer 1], and concluded [in] February 2011.[11]

    [11] ibid @ ff.47

    (f)Undated Document entitled ‘Application for Registration of Case against the Unknown Persons’ (English translation dated 12/10/2012).[12]

    [12] ibid @ f.50; AAT File No 1614343 @ f.90

    (g)Undated Document entitled ‘Application for Registration of Case against the Unknown Persons’ (Notary Stamped 30 June 2014).[13]

    [13] ibid @ f.52; AAT File No 1614343 @ f.91

    (h)Document entitled ‘Open Katchery of Inspector General of Police, Punjab, Lahore’ (dated [date] October 2012).[14]

    [14] ibid @ f.55

    (i)Statement by the applicant dated 19 September 2012 (English translation dated 18 September 2012).[15]

    [15] ibid @ f.58

    (j)Statement by the applicant dated [September] 2012.[16]

    [16] ibid @ f.60

    (k)Statement by the applicant (Notary Stamped 30 June 2014).[17]

    [17] ibid @ f.69; AAT File No 1614343 @ f.88

    (l)Affidavit of [Mr E] dated 11 October 2018.[18]

    [18] AAT File No 1614343 @ f.125

    (m)Document dated [date] February 2012 entitled ‘Application for Registration of Case against the Unknown Persons.’[19]

    [19] ibid @ f.62

    (n)Document dated [date] September 2012 entitled ‘Application for Registration of Case against the Unknown Persons.’[20]

    [20] AAT File No 1614343 @ f.95

    (o)Document dated [date] September 2012 entitled ‘Application for Registration of Case against the Unknown Persons.’[21]

    [21] AAT File No 1614343 @ f.94

    (p)Letter dated [date] October 2010 [entitled] ‘Ban on Display of Licensed Weapons.’[22]

    [22] ibid @ f.63; AAT File No 1614343 @ f.85

    (q)Undated Letter by Applicant entitled ‘Request for Issuance of Weapon carrying permit for Self Defense.’[23]

    [23] ibid @ f.64; AAT File No 1614343 @ f.85

    (r)Preliminary Information Report dated 20 February 2013.[24]

    [24] ibid @ f.67, AAT File No 1614343 @ f.87

    (s)Preliminary Information Report dated 17 September 2012.[25]

    [25] ibid @ f.71

    (t)Preliminary Information Report dated 15 October 2012.[26]

    [26] AAT File No 1614343 @ f.89

    (u)Show Cause Notice dated 31 July 2013.[27]

    [27] ibid @ f.72; AAT File No 1614343 @ f. 74 & f.124

    (v)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[28]

    [28] ibid @ f.73; AAT File No 1614343 @ f.79

    (w)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[29]

    [29] ibid @ f.75; AAT File No 1614343 @ f.75

    (x)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[30]

    [30] ibid @ f.76; AAT File No 1614343 @ f.75

    (y)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[31]

    [31] ibid @ f.77; AAT File No 1614343 @ f.76

    (z)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[32]

    [32] ibid @ f.80; AAT File No 1614343 @ f.77

    (aa)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [July] 2013.[33]

    [33] ibid @ f.82; AAT File No 1614343 @ f.80 & 78

    (bb)Application to [a court] dated [date] October 2013.[34]

    [34] ibid @ f.83; AAT File No 1614343 @ f.80

    (cc)Document entitled ‘Board of Intermediate & Secondary Education, Lahore’ in relation to the [applicant].[35]

    [35] ibid @ f.84

    (dd)[A] University Certificate, [degree] dated [date] June 2009.[36]

    [36] ibid @ f.85

    (ee)[University 1], [a Degree] dated [date] June 2006.[37] 

    [37] ibid @ f.86

    (ff)[University 1], [a Degree] dated [date] August 2005.[38] 

    [38] ibid @ f.86

    (gg)Document entitled ‘Board of Intermediate & Secondary Education, Lahore’ dated [date] April 1991.[39]

    [39] ibid @ f.87

    (hh)[University 1] Result Intimation Card dated 4 January 2003[40]

    [40] ibid @ f.88

    (ii)[Training] and Development Certificate dated September 2003.[41]

    [41] ibid @ f.89

    (jj)Documents entitled ‘Board of Intermediate & Secondary Education, Lahore’ in relation to [Ms A].[42]

    [42] ibid @ f.91-92

    (kk)Marriage Registration Certificate dated [2013].[43]

    [43] ibid @ f. 93

    (ll)Birth Certificate Ms [C] dated [date].[44]

    [44] ibid @ f. 94

    (mm)Birth Certificate Mr [D] dated [date].[45]

    [45] ibid @ f. 94

    (nn)Document entitled ‘Request for Redressal of Grievance’ dated [May] 2013.[46]

    [46] ibid @ f. 98; AAT File No 1614343 @ f. 82

    (oo)Press Clippings from [a] Newspaper ‘Pakistan’ dated [date] May 2013.[47]

    [47] ibid @ f. 100; AAT File No 1614343 @ f. 83

    (pp)Document from the Office of the Senior Member Inspection Team Lahore High Court, Lahore, dated [date] April 2013.[48]

    [48] ibid @ f. 101

    (qq)Document entitled ‘Request for Redressal of Grievance’ dated [April] 2013.[49]

    [49] ibid @ f. 103; AAT File No 1614343 @ f. 84

    (rr)Standard Chartered Transaction History for [name deleted].[50]

    [50] ibid @ f. 107

    (ss)Bank [Online] Statement Account for [Mr F] &/or [a named person].[51]

    [51] ibid @ f. 109

    (tt)Applicants’ travel history[52]

    (uu)Copies of applicants passports.[53]

    (vv)Suit for Specific Performance of Contract.[54]

    (ww)Document of Special Power of Attorney.[55]

    (xx)Affidavit of [Mr B] dated 13 March 2017.[56]

    (yy)Affidavit of [Mr E] dated 11 October 2018.[57]

    (zz)Report by [a] Psychological and Assessment Services dated [September]      2018.[58]

    (aaa)Transcript of Protection Visa Interview dated 21 July 2016.[59]

    (bbb)[Business 1] Financial statements.[60]

    (ccc)Newspaper article, [deleted], dated [December] 2018[61]

    [52] ibid @ f. 111

    [53] ibid @ f. 112-166

    [54] ibid @ f. 100

    [55] ibid @ f. 98

    [56] AAT File No 1614343 @ f. 68-66

    [57] ibid @ 125

    [58] ibid @ f.122

    [59] ibid @ f.114.

    [60] ibid @f72-69

    [61] ibid @ f.128

    The applicant’s claims

27. The applicant’s claims are contained in his statement attached to his application for a protection visa dated 7 August 2014.[62] The applicant’s claims were summarised in the delegate’s decision, dated 17 August 2016,[63] as follows:

    [62] ibid @ f. 29-31

    [63] AAT File No 1614343 @ 11-18

    (a)  The applicant is a Sunni Muslim man, who was born and lived in Lahore, in Pakistan. His father was a farmer.

    (b)  The applicant completed a [degree] at [a] [University]. He then went on to establish a business [in] Lahore in 1998. He is financially well off as a result of this business.

    (c)   The applicant is close friends with a man named [Mr B], who follows the Ahmadi faith. He has known [Mr B] since around 1993. In September 2012, [Mr B] was traveling to [Country 1]. As a result, the applicant gave him a lift to the airport. On the applicant’s return home his car was stopped by armed men on motorbike who tried to pull him out of the car but he managed to get away. The men told him that he should stop helping Ahmadis (also known as Qadianis).

    (d)  The applicant later received a threatening phone call from an Afghani telephone number which told him to cut off communication with Ahmadis if he wanted to save himself and his family.

    (e)  In January 2013 the applicant was driving in his car with his family when they were shot at by armed men in motorbikes.

    (f)    The applicant was approached by a man later in 2013 while he was shopping. This man asked him whether the applicant could help him to convert to Ahmadi. The applicant interpreted this as a threat against him.

    (g)  The applicant reported these incidents to the Police; however, they took no action.

    (h)  His wife and children were also threatened one day outside the children’s school.

    (i)    The applicant fears that he will be threatened and killed if he is to return to Pakistan as a result of his association with an Ahmadi.

    The applicant’s evidence

28. The applicant claims that he is a Sunni Muslim and a citizen of Pakistan having been born in Kasur, Pakistan on [date].  The applicant’s evidence was that his father worked as a farmer and his mother was engaged in home duties. His father continues to live in Kasur while his mother lives in Lahore. The applicant stated that he has [siblings]. His evidence was that they all continue to reside in Pakistan.  

1. The applicant married [Ms A] [in] 2006[64] in Pakistan. They have two children: Ms [C], [65] born [date], and Mr [D], born [date].[66]

   [64] Government of Punjab Marriage Registration Certificate issued [2013]; [file number deleted] @ f. 93

   [65] Government of Punjab Birth Certificate issued [date]; [file number deleted] @ f. 94

   [66] Government of Punjab Birth Certificate issued [date]; [file number deleted] @ f. 95

2. The applicant’s evidence was that he was educated in Lahore. He completed school in 1992, after which he completed a [a] [Degree]. A copy of his [Degree], dated July 1996,[67] is on the Department file.

   [67] [file number deleted] @ f. 95

3. The applicant also stated that he completed a [higher degree] from [a] University. A copy of his [Degree], dated [date] June 2009,[68] is on the Department file. 

   [68] [file number deleted] @ f. 85

4. In or about 1998 the applicant commenced a business known as [Business 1]. His evidence was that while he was studying his [degree] he commenced a new business [under] the same company name. The applicant said that the business was still owned and operated by his business partner. But he did not have any further involvement in the business.

5. The applicant confirmed that between 2002 and 2012 made multiple trips from Pakistan to various [countries].  He claimed that he made the trips for pleasure as a tourist.  In addition the applicant’s evidence was that he had visited Australia as a tourist from [November] 2011 to [December] 2011 and from [August] 2013 to [September] 2013. 

6. The applicant claimed that he has a long-standing friendship with a person known as [Mr B].[69] He stated that he had known [Mr B] since he was a child, from about 1993 and that he often meet him socially. The applicant’s evidence was that [Mr B] is an Ahmadi but had never attempted to recruit him to his religion.

   [69] Spelt  [Mr B] in the Affidavit dated 13 March 2017 at AAT File No 1614343 @ f. 68-66

7. The applicant claims that [in] February 2012 he was threatened by two unidentified motorcyclists when he was returning to his [house]. His evidence was that two motorcyclists approached him for the rear of his car and forced him to stop by parking in front of his car. The applicant explained to the Tribunal that he did not know the individuals who stopped him and that at first he thought it was a street crime. He said that they threatened him ‘with serious consequences’ and warned him to ‘refrain from his determinations.’[70]  The applicant’s evidence was that the men did not refer to the Ahmadis or that fact that he had associated with an Ahmadi person. The applicant provided a document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [date] February 2012[71] requesting that the police to register his case against the unknown people who he alleges assaulted him. 

   [70] Document entitled Application for Registration of Case against the Unknown Persons.’ Dated [date] February 2012; [file number deleted] @ f. 62

   [71] ibid

8. The applicant’s evidence was that on or about [September] 2012 [Mr B] was traveling to [Country 1] to attend a religious ceremony/function. [Mr B]’s flight was due to leave [in] the morning. As a result [Mr B] stayed at the applicant’s home and the applicant drove him to the airport. The applicant’s evidence was that he did not have any issue or experience any difficulty when traveling to and from the airport.   

9. [In] September 2012 the applicant claims that he was on the way home with a friend when he was stopped at gunpoint by two unidentified men riding a motorcycle in the vicinity of [Lahore], close to his home. The applicant explained that the traffic was heavy and slow. As such, he claimed that one of the men tried to pull him from his car but failed due to a passing traffic. The applicant claimed that while the man attempted to pull him from the car, he accused the applicant of being associated with Ahmadis and threatened that if he did not stop that would be killed. The applicant claimed that he was engulfed with fear. He said the whole incident took less than 2 minutes.

10. The Tribunal asked the applicant how the gunmen knew his friend was Ahmadi in circumstances where the country information states that there are no physical features that distinguish Ahmadis from the rest of the population.  The applicant said that he did not know but said that [Mr B] is [deleted] of his own community and, as such, is prominent within his local community.

11. The applicant claims that he immediately reported the matter to the police hotline. He said that the police attended and he later made his way home without any further incident. His evidence was that two days after the incident he made a formal report to the Police Station at [Lahore]. The applicant provided a document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [date] September 2012[72] in which he describes the details of the incident.

    [72] [File number deleted] @ f.60

12. [Mr B] gave evidence by telephone to the Tribunal. He confirmed the contents of his affidavit dated 13 March 2017[73] and stated that he and the applicant had been close friends from about 1993. He confirmed that he is Ahmadi and that he is currently [a member] of Jamaat-i-Ahmadiyya, [location], Pakistan. His evidence to the Tribunal was that his responsibilities [deleted]. He confirmed that he travelled to [Country 1] for a religious event on or about [September] 2012. His evidence was that he lives in Pakistan but travels to [Country 1] annually the event. He claimed that prior to his trip he stayed at the applicant’s home and the applicant drove him to the airport to catch his flight.     

    [73] Affidavit of [Mr B] dated 13 March 2017; [file number deleted] @ f.66-68.

13. The applicant claims that [in] September 2012 at about [time] he received a threatening phone call on his mobile phone from a Pathan person (on an phone number from Afghanistan). He claims the unknown person on the phone said to him that despite having been told to stop meeting and helping ‘Qadianis’ he continued to do so and as a result threatened to murder him and his family.[74] The applicant provided a copy of a document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [date] September 2012[75] in which he describes the incident. He claims that he provided a copy of the document to the police upon him reporting the incident at the Police Station [Lahore] [in] September 2012.[76] In addition the applicant provided a document referred to as Diary No [deleted] dated [date] September 2012[77] and a Preliminary Information Report dated [date] October 2012[78] in relation to the incident.      

    [74] Document entitled Application for Registration of Case against the Unknown Persons.’ Dated [date] February 2012; [File number deleted] @ f. 58

    [75] [File number deleted] @ f.50; AAT file No 1614343 @ f.90 & 95 (noted as Diary No [deleted] 19.09.2102).

    [76] ibid

    [77] [File number deleted] @ f.58

    [78] Op Cit @ f.71; AAT file No 1614343 @ f.89

14. [Mr B]’s evidence was that he was informed of the attack on the applicant by his wife, when he was in [Country 1], about three or four days after the attack. However, [Mr B]’s evidence was that he believed the attack occurred on the applicant’s return from the airport.   

15. The applicant claims that [in] January 2013 he was traveling to his sister’s home with his wife and children when he was attacked by two unknown men on a motorcycle. He claimed that the driver of the motorcycle had a beard and ‘the pillion had muffle face armed with a deadly weapon.’ He claimed that on his resistance they started firing on his car. He claims that one bullet passed through the car’s windscreen, narrowly missing his shoulder. In addition two further bullets hit the roof of the applicant’s car. He claims that he drove away very quickly saving the lives of his wife and children. The applicant provided a document entitled ‘Preliminary Information Report in respect of Offence within the Jurisdiction of the Police’ dated [date] February 2013 (FIR)[79] and an undated statement addressed to the Police [Station], Lahore.[80]  The applicant claims in the FIR that the attack occurred near [Venue 1].[81] 

    [79] Op Cit @ f.67; AAT file No 1614343 @ f.87

    [80] Op Cit @ f.68; AAT file No 1614343 @ f.88

    [81] The Tribunal assumes that this address refers [Venue 1].

16. The applicant confirmed in his oral evidence that he did not receive any threats between 17 September 2012 and 30 January 2013.

17. The applicant claims that repeated threats have been made against him and his family.  He claims that despite him registering the incidents with the police, the attackers have not been located. He claims that his attackers are members of terrorist organisations with worldwide links and that the police are unable to provide enough security to protect him and his family. The applicant claimed that he felt insecure and that as a result he was not able to perform his normal routine at home and at work. The applicant claims that he made an application to [a government agency] requesting that he be granted a license to carry a weapon, which was refused. The applicant, in his claim, states that his request was denied and a policy letter was issued to him.[82] The applicant provided a letter dated 1 March 2013 to the [a government agency] requesting that he be granted a license to carry a weapon,[83] together with a letter dated 26 October 2010 signed by [an official].[84] 

    [82] Applicants statement [File number deleted] @f.30

    [83] Letter to [a government agency] dated [date] march 2013 [File number deleted]; AAT file No 1614343 @ f.85

    [84] [File number deleted]@ f.63; AAT file No 1614343 @ f.85

18. The applicant stated to the Tribunal that the police failed to investigate the incidents he reported to the Police. He provided documentation,[85] including a Show Cause Notice dated [July] 2013,[86] ‘Request for Redress of Grievance’ letters dated [May] 2013[87] and [April] 2013[88], Memorandum dated [August] 2013 and other correspondence from the Inspector General of Police in response to his complaints to the Police and [a court] concerning the failure of the police to investigate the attacks and threats as alleged by the applicant. The Tribunal notes that the letter from [an officer] of Police dated [July] 2013[89] refers to the fact that the investigating officer failed to contact the complainant or collect data in relation to the threat made on the phone. However, the letter dated [August] 2013[90] notes that investigations were made to ‘trace out the accused persons but in vain.’

    [85] Op Cit @f.72-83; AAT file No 1614343 @ f.74-83

    [86] [File number deleted]@ f.72

    [87] AAT file No 1614343 @ f.82

    [88] AAT file No 1614343 @ f.84

    [89] Op Cit @ f82

    [90] Op Cit @ f80

19. The applicant claims that in or about August 2013 he was approached by an unknown person in a [Venue 2] [in] Lahore and asked if he knew anyone who could covert him to Ahmadi. As a result the applicant ignored the person and promptly left [Venue 2]. The applicant confirmed to the Tribunal that he was not harmed during this incident, but said that he was shocked by the request. He claimed that he felt helpless by the incident and as a result had become stressed.[91] 

    [91] Applicants statement [File number deleted]@f.29

20. The applicant claimed that in December 2013 he received a phone call from an unknown person stating that ‘they know he had become an Ahmadi.’  The applicant said that he did not know the identity of the caller and did not respond to him. The applicant did not elaborate on the circumstances in which he received the phone call or say what he did as a result of having received the call.

21. In his statement he claims that in December 2013 received a letter from [an official] of [a court] that the Court was aware of all his enquiries about his matter to the Police and that a report by the police had been sent to the Court. The applicant claims that [officer from Police] admitted that after checking all the records they found that the investigating officer did not perform his duties correctly.

22. The applicant’s evidence was that he was not satisfied with the response provided by the police as he did not receive a remedial action letter from [a court] that would safeguard his and his family’s safety. The applicant claims that the investigating office engaged in reprisal actions. The applicant claims that in the event he returns to Pakistan there is a real chance he will be seriously harmed at the hands of the investigating officer.  The applicant did not provide any evidence of action taken against him or his family specifically by the investigating officer as claimed.   

23. In his statement the applicant claims that as a result of the threats he purchased a new  [motor] vehicle and hired a driver in order to protect his family while they were being dropped off and picked up for school. However, the applicant claims that one day an unknown person approached his driver and threatened him to leave his job and asked how much money the applicant had received from the Qadianis to convert to their religion for him to be able to pay for the car. The applicant claims that as a result of having been approached, his driver left his job and he was forced to sell the car at a loss. 

24. The applicant claimed that in or about June 2014 his wife was threatened in front of his school. He claimed that while his wife was picking up their children for school an unknown man approached her and asked if she was the wife of the applicant. Upon confirming that she was the applicant’s wife the man said that they now know that ‘your children study at this school’. The applicant’s wife gave evidence before the Tribunal and confirmed that he had been approached by an unknown man while picking their children up from school claiming that ‘they now know’ what school the applicant’s children attended.

25. Finally, the applicant claimed that he was attacked by two people on a motorbike in or about 2014, when he was traveling home with a friend that he used to play [sports] with known as [Mr G]. The applicant did not provide any statement from [Mr G] and did not make any oral or written complaint to police.

26. The applicant claims that he no longer feel safe in Pakistan and states that he can no longer live there. He claims that in the even he returns to Pakistan there is a real chance that he will be seriously harmed by reason of his friendship with an Ahmadi person, [Mr B].

27. The applicant claims that he was involved in a land dispute in Pakistan which concerned land that his father had owned. The applicant provided court  documents headed ‘Suit for Specific Performance of Contract’[92] and ‘Special Power of Attorney dated [November] 2011[93] that relate to proceedings before [a court] for specific performance  of a contact over a transfer of land. The applicant did not elaborate or provide any further evidence in relation to the dispute. However, the applicant’s evidence was that the threats he had received were religiously based and did not relate to any claim in relation to land. Therefore, based on the applicant’s evidence, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he returns to Pakistan as a result of the land dispute as claimed.

    [92] [File number deleted] @ f.100

    [93] Op Cit @ 98

28. The applicant also claims that in the event that he is returned to Pakistan there is a real chance that he will suffer serious harm by reason of his poor mental health. The applicant claims to be suffering for chronic trauma symptoms which resemble Post Traumatic Stress Disorder (PTSD). The applicant provided a Psychological Report by [Mr H] of [a] Psychological and Assessment Services dated [date] September 2018 (‘the [Mr H] Report’). 

29. The applicant lodged his protection visa application on 8 August 2014 and was granted a bridging visa, on which he currently remains in Australia.

    THE COUNTRY INFORMATION

30. In assessing this decision, the Tribunal has considered the available country information. It has had regard to the country information provided by the applicant, including the article in [deleted] newspaper dated [date] December 2018 and in the newspaper [deleted] dated [date] May 2013.[94] In particular, the Tribunal has considered an earlier Department of Foreign Affairs and Trade Country Information Report for Pakistan dated 1 September 2017 (‘the September 2017 DFAT Report’), together with the most recent Department of Foreign Affairs and Trade Country Information Report for Pakistan dated 20 February 2019 (the latter herein ‘the DFAT Report’). So far as the applicant’s claims are concerned the there is no material difference between the DFAT Report and the September 2017 DFAT Report. Specifically, the DFAT Report states:

    [94] [Details deleted]

    ‘Security Situation[95]

    [95] DFAT Report @ p.18

    2.66       The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.

    2.67       Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

    2.68       Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).

    2.69       The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).

    2.70       Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi’a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). Three of the faith-based violent incidents targeted the Ahmadi community (see Religion and Ahmadis). Sectarian violence also reduced by 40 per cent (12 incidents reported) in 2018 compared to 2017.

    2.71       Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti-Shia sectarian groups). While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti-Pakistan Sunni groups and anti-Shia sectarian groups).

    2.72       The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.’

    ‘Ahmadis[96]

    [96] DFAT Report @ p.38

    3.113     Ahmadiyya is a religious movement based on Islam founded in the Punjab in the late 1800s by Mirza Ghulam Ahmad. Ahmadis consider themselves Muslims, follow the teachings of the Quran, and believe Ghulam Ahmad was the Mahdi (a prophet who would appear at the time of the second coming of Jesus Christ, and fill the world with justice and equality prior to the Day of Judgement). Sunni and Shi’a Muslims believe the Prophet Muhammad was the last of the prophets, and many consider Ahmadis heretics.

    3.114     Ahmadis are not readily identifiable by their appearance, language or names. Many Ahmadis do not publicly identify for fear of persecution, maintain a low profile in the community to avoid societal discrimination and violence, and refuse to take part in the census. Estimates of the number of Ahmadis in Pakistan range between 500,000 and 4 million. Media articles on the national census reported 167,000 Ahmadis in Pakistan.

    3.115     Most Ahmadis live in Punjab. Rabwah, Punjab is considered the Pakistan headquarters of the Ahmadi community (population is around 95 per cent Ahmadi). According to the UK Home Office, the main population centres for Ahmadis in Pakistan, aside from Rabwah, are Sialkot, Quetta, Multan, Rawalpindi, Karachi, Lahore and Faisalabad. Pakistan’s Ahmadi community is relatively well educated and prosperous, and community leaders are very active political and diplomatic lobbyists. Many Ahmadis live overseas and the community has an active diaspora in Australia. Leaders of the movement, including the current Supreme Head, Hazrat Mirza Masroor Ahmad, have resided in the UK since 1984.

    3.116 Ahmadis face high levels of official discrimination in Pakistan and are not able to practise their religion freely. In 1974, the Pakistan government amended the Constitution to state explicitly that Ahmadis were considered non-Muslims. In 1984, the government of General Muhammad Zia ul-Haq promulgated Ordinance XX, which banned Ahmadis from: publicly practising their faith; using non-Ahmadi mosques or public prayer rooms for worship; using Islamic texts for their prayers; performing the Muslim call to prayer; producing, publishing or disseminating religious materials; using the traditional Islamic greeting in public; seeking converts; and publicly quoting from the Quran. Ordinance XX also banned Ahmadis from identifying or ‘posing’ as Muslims.

    3.117     In practice, the community reports Ahmadis can be charged for using the standard Islamic greeting or naming their child Muhammad. Punishment for Ordinance XX offences is up to three years’ imprisonment and a fine. Ahmadis are exempt from the 2.5 per cent zakat deductions on personal income mandatory for Muslims in Pakistan.

    3.118     In 2018, the government asked Princeton University economist, Dr Atif Mian to step down from the prime minister’s Economic Advisory Council following mounting pressure from religio-political parties against the appointment of Dr Mian, who is an Ahmadi.

    3.119 In 2017, Police prosecuted 77 Ahmadis under anti-Ahmadi legislation, and nine Ahmadis were in prison on faith-related charges in 2017. Ahmadis claim prosecutors and judges discriminate against community members by trying them under blasphemy laws, which carry more severe sentences than Ordinance XX offences. Retired Captain Muhammad Safdar, former prime minister's son in law and a member of then-ruling PML-N, also accused Ahmadis of acting against the country's interests in 2017. Safdar called for action against the Ahmadi community, and stated Ahmadis were ‘a threat to this country, its Constitution and ideology’.

    3.120     Community representatives claim police arrested four Ahmadis in May 2014 for allegedly tearing an anti-Ahmadiyya poster. Police failed to intervene when a student from a local madrassa fatally shot one of the detainees in police custody inside the police station. Following a request from a local politician, the High Court revised the charges against the three surviving detainees to a more serious one of insulting the Holy Prophet, for which they subsequently received death sentences. The three remain in prison and the community continues to advocate for their release.

    3.121     Two police FIRs, dated 1989 and 2018, are currently listed against the entire Ahmadi community. The second FIR, issued during an Ahmadi festival on 23 March 2018, ordered Ahmadis not to look happy in public, distribute sweets or wear new clothes. DFAT is aware of reports of: police entering Ahmadi places of worship to dismantle minarets (symbols of Islamic mosques) and removing Arabic inscriptions of Islamic texts from the walls; mobs setting fire to Ahmadi places of worship, desecrating graves and disinterring remains; and authorities handing over Ahmadi places of worship to non-Ahmadi groups, and closing down Ahmadi publications.

    3.122     On 5 December 2016, officers from the counter terrorism Department of the Punjab police raided Ahmadi headquarters in Rabwah, arresting four Ahmadis on suspicion of publishing banned magazines. One security guard was reportedly beaten during the raid. On 12 December 2016, a crowd of around 1,000 people attacked an Ahmadi place of worship in Chakwal, burning religious books and other items. One Ahmadi man died from cardiac arrest during the attack, while a stray bullet killed one non-Ahmadi man. The Ahmadiyya mosque in Dulmial, District Chakwal remains locked.

    3.123     The UK Home Office reports that authorities are using anti-terror legislation to ban and seize Ahmadi publications as ‘hate literature’. The legislation allows security officials to arrest suspected authors and distributors of ‘hate literature’ without notice and without access to bail. The penalty is five years’ imprisonment. A ban on the written works of Ghulam Ahmad continued in 2018, as did a publishing ban on the Ahmadiyya daily ‘The Alfazl’ and community periodicals ‘Ansarullah’, ‘Misbah’, ‘Khalid’, ‘Tashheez’ and ‘Tahrik Jadid.’

    3.124     Ahmadis can face difficulties when applying for or requesting changes to official documentation. When Ahmadis register for a CNIC, they sign as Muslim by default on the CNIC form. However, after marriage Ahmadis must update their marital status on their CNIC, requiring presentation of a marriage certificate. Although the government recognises Ahmadi marriage certificates as legal, presentation of the Ahmadi marriage certificate by a person registered as Muslim on a CNIC can lead to claims of apostasy. Community members claim that, in one case, an Ahmadi seeking to change his CNIC was threatened with apostasy charges and paid a bribe equivalent to AUD 20,000 to rectify the ‘administrative error’ on his registration. Ahmadis report similar problems when seeking amendments to Pakistan Origin Card (see Other Forms of Identification). In 2018, Justice Shaukat Aziz Saddiqui asked NADRA to provide the court with all private CNIC data for all Ahmadis, and ordered NADRA not to change any Ahmadi’s religion on their CNIC without a court order. Justice Saddiqui also asked NADRA to publish a list of Ahmadis, especially those in government positions.

    3.125     DFAT is aware of claims that census officials in 2017 officially recorded some Ahmadi families in Lahore as Muslims, and later accused them of apostasy. Ahmadis applying for passports can avoid apostasy accusations by marking their religion as ‘other’, rather than ‘Muslim’.

    3.126     Ahmadis wishing to vote must register on a separate Ahmadi list, which specifies they are not Muslim. Other religious groups such as Christians do not face the same restrictions. In the lead-up to the 2013 elections, many Ahmadis refused to register and were unable to vote. Applications for official documentation, including passports and CNICS, contain information about religious affiliation, and people who identify as Muslim have to explicitly denounce Ghulam Ahmad as a false prophet and Ahmadiyya followers as non-Muslims. If unwilling to sign, Ahmadis are unable to access a passport to travel to complete the Hajj.

    3.127     In October 2017, the government passed an amendment to the Elections Act, changing the language of the electoral oath by replacing the words ‘I solemnly swear’ with ‘I believe’ in a proclamation of Muhammad as the religion’s last prophet. This facilitated Ahmadis’ ability to vote. The law removed the requirement for Ahmadis to register separately and placed them on joint lists prepared by NADRA. The change caused public outcry, and prompted large demonstrations and accusations the government was weakening its stance on Ahmadis. Protesters, led by the conservative Tehreek-e-Laibbak Pakistan (TLP), protested in Islamabad stating the change was blasphemous and anti-Ahmadi material circulated in the media. Following community pressure, the government cited clerical error and quickly restored the earlier wording to the oath in the Elections Act, 2017, and revised the electoral law to reincorporate Ahmadi registration requirements. The government also declared 2018 ‘The Year of Awareness of End of Prophethood’. The AJK Provincial Assembly passed a resolution to incorporate the federal government’s anti-Ahmadi laws into the provincial interim constitution.

    3.128      The protest over the language of the electoral law language reflects the sensitivity of Islam in Pakistan and the growing support base of political Muslim groups, including those with extremist ideologies or connections. Many local and international observers say that heightened religiosity in the 2018 election campaign has increased societal discrimination against Ahmadis, which may manifest in more violence. Human rights advocates and Ahmadis alike considered the situation for Ahmadis in 2018 was worse than ever before. As Pakistan has transitioned to democracy, the situation for Ahmadis has worsened.

    3.129     Violence against Ahmadis by militant groups has been relatively rare in recent years. This partly reflects a general improvement in the security situation, the relatively high socio-economic status of many Ahmadis, and the difficulty of identifying Ahmadi solely from their appearance. Nonetheless, violent attacks on Ahmadis can and do occur. Unknown gunmen killed three Ahmadis in separate sectarian attacks in Punjab between March and May 2017, and half (three out of a total six) of total faith-based violent incidents across Pakistan in 2018 targeted the Ahmadi community (see Security Situation). Media reports anti-Ahmadi group, Aalami Majlis Tahaffuze Khatme Nabuwwat (AMTKN), is one of the main banned organisations involved in attacks and threats against, and the killing of Ahmadis, both in Pakistan and overseas (United Kingdom). Media reports allege MTKN is also active in its efforts to advocate for more restrictions on the Ahmadi community in Pakistan.

    3.130     The problems faced by Ahmadis in nominating their religion create administrative problems accessing many services. Ahmadi students have to register as Muslim or non-Muslim for their high school examinations. In Rabwah, students can elect to register with the Aga Khan Examination Board instead, which does not require a declaration of religion. Ahmadis in government schools and in other cities do not have this option. Ahmadis seeking to open bank accounts face similar registration issues, although many Ahmadis in Pakistan do have bank accounts.

    3.131     Ahmadis claim to face significant employment discrimination. Most Ahmadis do not declare their religion in the workplace, as those discovered face hostility and discrimination, including dismissal. Non-Ahmadi parents discriminate against Ahmadi teachers and pupils in schools. Ahmadi patients can also face discrimination when obtaining medical treatment.

    3.132     Government policy restricts Ahmadis joining government service, and imposes career ceilings for those who do obtain public sector jobs. In the military, which is widely regarded as the most meritocratic institution in Pakistan, Ahmadis face an ‘unwritten’ promotion ceiling at brigadier level.

    3.133     Public advocates for the Ahmadi community face significant risk of violence; although the community claims some political leaders privately support them.

    3.134     Ahmadis report they feel safest in Rabwah, although an Ahmadi who had drawn adverse official or societal attention would not be safe there. Ahmadis face the highest risk of discrimination and violence in rural villages where no extended Ahmadi community exists, although the security of individuals largely depends on the attitude of the local cleric. Ahmadis report the highest levels of discrimination in rural areas in Punjab. After Punjab, Ahmadis consider Karachi to be the most dangerous location.

    3.135     Human rights groups consider Ahmadis to be the most vulnerable group in Pakistan, due to legal discrimination and growing religious intolerance. DFAT assesses that Ahmadis in Pakistan face a high risk of official discrimination, which affects their ability to practise their religion freely and limits the extent of their political and social engagement. DFAT assesses that Ahmadis face a high risk of societal discrimination and violence, which intensified in late 2017 and increased in 2018 as a result of the major Khatm-e-Nabuwat protests at the end of 2017 and the 2018 election. ‘

    Prevalence of Fraud[97]

    5.70      CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents, and can cancel fraudulent CNICs.

    5.71.      Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

    5.72      Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.

    5.73       FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police 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.

    5.74       Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.

    5.75       As self-declaration as an Afghan is the only requirement to apply for an ACC, it is possible for an individual not in either the NADRA or MORR databases to fraudulently obtain an ACC (see Afghan Refugees).

    5.76.      Corruption is also common (see Corruption), however in August 2015, the FIA reportedly investigated allegations of NADRA officials issuing fake CNICs to militants in return for bribes as low as USD 100. Since then, MoI has increased its oversight of NADRA and implemented tough measures against fraud within NADRA. DFAT assesses that government efforts have reduced the incidence of bribery and fraud, but have not eliminated it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [97] DFAT Report P.71

    Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[98]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[99]

   [98] s.5AAA Migration Act 1958.

   [99]  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.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[100] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [100]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[101] However, such a benefit should 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.

   Accepted facts

   [101]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

5. Based on the oral evidence provided at the hearing the Tribunal accepts and finds that:

   (a)The applicant was born in Kasur, Pakistan on [date] and is a citizen of Pakistan and a Sunni Muslim. 

   (b)The applicant’s father worked as a farmer and his mother was engaged in home duties and that his father continues to live in Kasur while his mother lives in Lahore.

   (c)The applicant has [siblings] who all continue to reside in Pakistan.

   (d)The applicant married [Ms A] [in] 2006 in Pakistan and has two children, Ms [C] and Mr [D].

   (e)The applicant travelled as a tourist to [various countries] between 2002 and 2012.

   (f)The applicant visited Australia as a tourist from [date] November 2011 to [date] December 2011 and again from [date] August 2013 to [date] September 2013. 

   (g)The applicant has a long-standing friendship with an Ahmadi person known as [Mr B].

   (h)The applicant was educated in Lahore, having completed school in 1992, a [Degree] [in] 2006 and a [higher Degree] in 2009.

   (i)The applicant was the owner and operator of a business known as [Business 1].

   (j)The applicant no longer has any interest in [Business 1].

   Applicant’s refugee claim

   Relevant grounds

6. The applicant claims to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of religion due to his association with an Ahmadi person. The scope of ‘religion’ within the context of the Convention was considered by the Federal Court in several cases including MIMA v Darboy[102] and Wang v MIMA.[103] In MIMA v Darboy the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

   The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

   [102] [1998] FCA 931 (Moore J, 6 August 1998).

   [103] (2000) 105 FCR 548. Followed in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22].

7. An overview of the scope of ‘religion’ as a refugee ground can be found in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. In particular it states:

   ‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’[104]

   [104] Handbook, above n Error! Bookmark not defined. at [71]-[73].

8. Therefore, the question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[105]  It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[106]

   [105] To be an apostate does not require conversion from one faith to a different faith, but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.

   [106] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

9. Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[107] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[108]

   [107] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 ( per Hill, Whitlam & Carr JJ, 10 February 2000)

   [108] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

10. In this case, the applicant is a Sunni Muslim who claims to have a well-founded fear of returning to Pakistan by reason of his association with his friend who happens to be an Ahmadi person. The applicant claims that as a result of his association with [Mr B] he has been threatened by unknown persons associated with terrorist organisations. The threats are as a result of his association with [Mr B] rather than his own religion. That is they are not strictly as a result of his religious practice or because he belongs to a particular religious community, rather they are as a result of his association with a person of the Ahmadis faith. However, the applicant does claim that he has wrongly been accused of having converted to the Ahmadi faith. Therefore, while not strictly falling with the scope of ‘religion’ as a refugee ground, based on the country information concerning the treatment of Ahmadis in Pakistan, the Tribunal accepts that his claims fall within s.91R(1)(a) of the Act by reason of religion.

11. In addition, the applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act by reason him being a members of a particular social group, that is as a Sunni Muslim sympathetic to the Ahmadi faith[109] and as a person who suffers from a mental illness in Pakistan.  To be considered as part of a particular social group pursuant to section 5L of the Act, it is necessary for the applicant to share, or be perceived to share, a particular characteristic with each member of the group. The characteristic must distinguish the group from the rest of society. It must be innate or immutable or so fundamental to the identity or conscience of the members of the particular group that a member should not be forced to renounce it.[110]

    [109]  Applicants submission dated 5 October 2018; AAT file No 1614343 @ 60

    [110] /Section 5L of the Act

12. In this case, the Tribunal has doubts that suffering a mental illness in Pakistan constitutes a characteristic that is so fundamental to the identity or conscience of the applicant that he is considered to be a member of a particular group to the extent that it distinguishes him and the group from society at large. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that he is a member of a particular social group by reason of his mental illness in Pakistan.

13. Finally, while the Tribunal has some doubt as to whether the applicant’s sympathy toward the Ahmadi faith is so innate or fundamental his identity, it accepts the applicant’s his submission he is a member of a particular social group as a result being a Sunni Muslim sympathetic to the Ahmadi faith

14. Accordingly, the Tribunal accepts that the applicant is a member of a particular group pursuant to s.5J(1) of the Act.

    Applicant’s well-founded fear

15. In Chan v MIEA[111] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[112]

    [111] (1989) 169 CLR 379 at 396.

    [112] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

16. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns to Pakistan.

17. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[113]

    “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

    [113]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

18. In MIEA v Guo, the Court stated that:[114]

    Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

    [114] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

19. The applicant claims that in the event he is returned to Pakistan there is a real chance he will suffer serious harm as a result of his mental illness and his association with an his friend [Mr B] who is of the Ahmadi faith. For the reasons expressed below, the Tribunal does not accept that the applicant has a subjective fear or objective fear of persecution for a reason mentioned in s.91R(1)(a) of the Act.

    Applicant’s friendship with [Mr B]

20. The applicant claimed that he has a long-standing friendship with [Mr B].[115] The applicant provided an affidavit sworn by [Mr B], dated 13 March 2017,[116] who also gave evidence at the hearing by telephone. [Mr B] confirmed that the applicant and he had been friends from about 1992. He stated that they met as students and they socialised on a regular basis. He confirmed that he is Ahmadi and that he is currently [a member] of Jamaat-i-Ahmadiyya, [location], Pakistan. His responsibilities involve managing religious ceremonies and events.

    [115] Spelt  [Mr B] in the Affidavit dated 13 March 2017 at AAT File No 1614343 @ f. 68-66

    [116] Affidavit of [Mr B] dated [ March] 2017 AAT Fiel No1614343 @ f.66

21. [Mr B] confirmed that he travelled to [Country 1] for a religious ceremony and event on or about [date] September 2012. His evidence was that he lives in Pakistan but travels to [Country 1] annually for the event. His evidence was that that prior to his trip he stayed at the applicant’s home for the purpose of the applicant being able to drive him to the airport to catch his flight.     

22. Based on the evidence of the applicant and [Mr B], the Tribunal accepts and finds that:

    (a)The applicant and [Mr B] have a long-standing friendship and socialised on a regular basis.

    (b)[Mr B] is Ahmadi and [a member] of Jamaat-i-Ahmadiyya, [location], Pakistan.

    (c)The applicant drove [Mr B] to the airport as claimed on or about [date] September 2012.

    Attack – [February] 2012

23. The applicant claims that [in] February 2012 he was threatened by two unidentified men riding a motor cycle when he was returning his home. The applicant’s evidence was that the attackers did not refer to Ahmadis or that fact that he was associated with an Ahmadi person. The applicant claims that the following day he reported the matter to the police and provided a document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [February] 2012.[117] In the document the applicant claims that he was warned to ‘refrain from his determinations’ and that he was under ‘serious harassment’ and ‘life threats.’ In circumstances where the applicant claims the document was drafted within 24 hours of the attack (a time when the circumstances of the attack would have been clear in his mind) the document provides little detail of the attack.  It does not explain what ‘determinations’ he is to refrain or how he remained under ‘serious harassment’ and ‘life threat’ as a result of the attack.

    [117] ibid

24. The Tribunal notes the country information in relation to document fraud in Pakistan, which reports that document fraud is widespread. It notes that police First Information Reports (‘FIRs’) use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit and that DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[118]  The document was provided by the applicant to the Tribunal as evidence of him making a police report in relation to the incident. However, it appears to be nothing more than a self-serving record of the event rather than evidence that the attack occurred as described by the applicant.  Therefore, in light of the country information in relation to the prevalence of fraud and vague nature of the applicant’s evidence, including the lack of specific detail concerning the attack and its location, the Tribunal has serious concerns about the credibility of the applicant’s evidence in relation to the attack. Accordingly, it does not accept that the document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [February] 2012 as evidence of the attack or that the applicant made any police report as claimed. 

    [118] DFAT Report @ p.71

25. The applicant’s oral evidence to the Tribunal in relation to this attack was vague and lacking any specific detail. The applicant claimed he was forcibly stopped in [an] area of Lahore, but failed to provide any evidence as to the specific location of the attack, such as the address, the street name or any familiar landmark close to where the attack occurred. In addition, despite claiming that the attackers stopped him by parking their motorcycle in front of his car, he was not able to provide specific details of the attack including a description of his attackers, if they had any weapons or if they made any physical contact with the applicant. Finally, the applicant claimed that the attackers threatened him by demanding that he resist his ‘determinations.’ The Tribunal notes that this attack occurred prior to the applicant driving his friend [Mr B] to the airport. The applicant did not provide any other specific evidence of an occasion when he and [Mr B] were seen openly together and as such the attack does not appear to have been linked to his association with [Mr B].  Therefore, in light of his evidence that the attackers did not refer to Ahmadis or that fact that he was associated with an Ahmadi person, the applicant was only able to speculate as to the reasons for the attack.  

26. The Tribunal has concerns in relation to the applicant’s evidence of the attack, including the fact that it does not accept the document dated [February] 2012 as evidence of the attack.  Nevertheless, the Tribunal is prepared to give the applicant the benefit of the doubt and accepts that an attack did occur on the applicant as claimed. However, based on the applicant’s own evidence, the Tribunal does not accept that the attack was as a result of the applicant being associated with an Ahmadi person or as a result of a mistaken believe by those attacking him that he was Ahmadi. Rather the Tribunal finds that the attack was as result of the general violence in Lahore rather than any specific attack on the applicant.

27. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of the applicant’s claim that he was attacked [in] February 2012 and threatened to ‘refrain from his determinations’ as claimed.  

    Attack – [September] 2012

28. The applicant claims that he was attacked [in] September 2012 after taking his friend [Mr B] to the airport on [date] September 2012.  He claims that he was on his way home with a friend when he was stopped at gunpoint by two unidentified men riding a motorcycle in the vicinity of [Lahore], close to his home. The applicant claimed that one of the men tried to pull him from his car but failed due to passing traffic and accused him of being associated with Ahmadis. He claims that he was threatened that if he did not stop he would be killed. The Tribunal notes that [Mr B]’s evidence was that the applicant was attacked upon his return from dropping him off at the airport. However, it notes that [Mr B] was told of the attack by his wife. As a result, his evidence to the Tribunal was hearsay and as such the Tribunal gives his evidence only little weight. 

1. The applicant claims that he reported the matter to police and provided a document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [September]2012,[119] in which he describes the details of the incident. Based on the available country information and for the reasons expressed in relation to the attack [in] February 2012, the Tribunal does not accept the document as evidence of the attack or that the applicant reported the attack to the police as claimed.

   [119] [File number deleted] @ f.60

2. The applicant’s evidence was that his attackers became aware of his association with [Mr B] as a result of the applicant driving him to the airport [in] September 2012. It was both [Mr B]’s and the applicant’s evidence that he dropped [Mr B] at the airport in the early hours of the morning. The applicant then claimed that he was attacked two days later upon returning home from dinner with a friend.

3. The Tribunal notes the affidavit of [Mr E],[120] in which he states that he was with the applicant at the time of the attack [in] September 2012. He confirms that the applicant’s car was stopped by two men on a motorcycle. He claims that the applicant was threatened by the two men and they tried to pull him from his car. However, he makes no mention of the applicant being accused or threatened due to being associated with an Ahmadis person or having converted to the Ahmadis faith As such, even accepting the applicant’s evidence that [Mr B] is an important and well known Ahmadi person, it appears highly unlikely that the applicant would be recognised and associated with [Mr B] in circumstances where he drove his friend to the airport, in the dark, late at night or in the early hours of the morning. Therefore, in all the circumstances, it appears that the applicant has been attacked randomly in circumstances where he was returning home with a friend. There was nothing to indicate that his movements were known to others for the purposes of allowing them to plan the attack.

   [120] AAT File No 1614343 @ f.125

4. As a result, while the Tribunal accepts that the attack may have occurred as a result of the general violence in Lahore, it does not accept that the applicant was attacked by reason of his association with [Mr B], as an Ahmadi person as claimed. As a result, it finds that he was not threated to be killed if he did not stop associating with the Ahmadis as claimed. The Tribunal does not accept he was targeted and threatened in the manner as claimed. In addition, based on the country information and the fact that the Tribunal has found that the applicant was not threatened as claimed, it does not accept that the applicant made any complaint to the police either by telephone or by the document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [September] 2012.

5. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of the applicant’s claim that he was attacked on[September] 2012 and threatened to stop associating with Ahmadis as claimed.  

   Threatening phone call – [September] 2012

6. The applicant claims that [in] September 2012 at about [a specified time] he received a threatening phone call on his mobile phone from a Pathan person (on an phone number from Afghanistan) who threatened to kill him and his family  if he continued to meet and help ‘Qadianis’.[121] The applicant provided a copy of a document entitled ‘Application for Registration of Case against the Unknown Persons’ dated [date] September 2012[122] and claims that he provided a copy of the document to the police upon him reporting the incident to the police on [date] September 2012.[123] In addition the applicant provided a document referred to as Diary No [deleted] dated [date] September 2012[124] and a Preliminary Information Report dated [date] October 2012[125] in relation to the incident. Based on the available country information referred to above[126] and for the reasons expressed in relation to the attack on [date] February 2012, the Tribunal does not accept these documents as evidence of the threats made on the phone as claimed or that the applicant reported the incident to the police as claimed.  

   [121] Document entitled Application for Registration of Case against the Unknown Persons.’ Dated [ February] 2012; [File number deleted] @ f. 58

   [122] [File number deleted] @ f.50; AAT file No 1614343 @ f.90 & 95 (noted as Diary No [deleted] 19.09.2102).

   [123] ibid

   [124] [File number deleted] @ f.58

   [125] Op Cit @ f.71; AAT file No 1614343 @ f.89

   [126] DFAT Report @ p.72

7. The Tribunal notes that there is no evidence of the applicant having received any other similar threatening phone call. In addition there is no evidence of any other claimed incident until [date] January 2013. Having found that the applicant was not threatened as claimed in the attacks on [ February] 2012 and [September] 2012, the Tribunal has serious concern in relation to the applicant’s evidence in relation to the threat on the phone as claimed.  Nevertheless, even accepting that the threat on the phone did occur as claimed, the Tribunal notes that there was no further claimed incident or threat until [date] January 2013; a period of approximately 16 months. This length of time between the phone call and any further incident demonstrates that the threat was at best opportunistic and hollow in nature.

8. As such the Tribunal finds that there is no real chance that the applicant will suffer serious harm by reason of the phone call [in] September 2012 as claimed.

   Claimed incident [in] January 2013

9. The applicant claims that [in] January 2013 he was traveling to his sister’s home with his wife and children when he was again attacked by two unknown men on a motorcycle who fired on his car. He claimed that one bullet passed through a windscreen narrowly missing his shoulder and another two bullets hit the roof of the applicant’s car. He claims that he escaped by driving very quickly saving the lives of his wife and children. There was no evidence as to who carried out the attack or that it was motivated by the fact that applicant was associated with an Ahmadi person as claimed. In circumstances where the attack occurred approximately 16 months after the applicant gave [Mr B] a lift to the airport, the Tribunal finds that the attack was not as a result of the applicant’s relationship with [Mr B] or any association he may have with the Ahmadi faith. Nevertheless, the Tribunal accepts that if the attack occurred as claimed, it may have been as a result of the general violence in Lahore. 

10. Once again, the applicant provided a document entitled ‘Preliminary Information Report in respect of Offence within the Jurisdiction of the Police’ dated [date] February 2013 (FIR)[127] and an undated statement addressed to the Police [Station], Lahore.[128]  The applicant claims in the FIR that the attack occurred near [Venue 1].[129]  In the FIR, the applicant engages in mere speculation as to the reason of the attack. He claims that ‘he is sure’ that the attack was by sectarian group/terrorists as a result of his association with [Mr B]. However, he does not identify the name of the organisation who he alleges is causing the attacks upon him and provides no evidence that the attack was related to his relationship with [Mr B]. Nevertheless, once again, based on the available country information referred to above[130] and for the same reasons expressed in relation to the attack [in] February 2012, the Tribunal does not accept these documents as evidence of the attack as claimed or that the applicant reported the incident to the police. The documents, in particular the FIR, appear to have been drafted for the purposes of supporting the applicant’s claims for protection rather than as a result of any serious attack upon him or his family as claimed.

    [127] Op Cit @ f.67; AAT file No 1614343 @ f.87

    [128] Op Cit @ f.68; AAT file No 1614343 @ f.88

    [129] The Tribunal assumes that this address refers [Venue 1].

    [130] DFAT Report @ p.72

11. Despite concerns about the applicant’s evidence, the Tribunal does accept that it is possible he was attacked as a result of general violence. However, it does not accept that the attacked occurred as a result of the applicant’s relationship with [Mr B] as claimed. As a result it finds that there is no real chance the applicant will be seriously harmed in the event that he returns to Pakistan by reason of the attack [in] January 2013 on the basis of his association with an Ahmadi person as claimed. 

    [Venue 2] incident – August 2013

12. The applicant claims that in or about August 2013 an unknown person approached him in a [Venue 2] [in] Lahore and asked if he knew anyone who could covert him to Ahmadi. He claims that he became very scared, ignored the person and promptly left the [Venue 2]. Despite the fact that he felt helpless and stressed[131]  by the incident, the applicant confirmed that he did not suffer any harm as a result of the incident. Accordingly, based on the applicant’s own evidence, the Tribunal finds that there is no real chance that the applicant will suffer serious harm as a result of the incident in the [Venue 2] in or about August 2013 as claimed.

    [131] Applicants statement [file number] @f.29

13. Finally, by traveling to Australia [in] August 2013 and returning to Pakistan [in] September 2013, the applicant appears not to have held a well-founded fear of persecution upon his return to Pakistan by reason of the threats he claims to have received on [date] February 2012, [date] September 2012, [date] September 2012, [date] January 2013 and August 2013. There appears to be no valid reason why the applicant could not have made a claim for protection upon his arrival in Australia in August 2013 in the event that he had held a well-founded fear of persecution as a result of the threats he had received up to that time.  Accordingly, the Tribunal has concerns about the applicant’s evidence in relation to the threats he claims to have received prior to the time of him traveling to Australia in August 2013.

    Phone call - December 2013

100.   The applicant claimed that in December 2013 he received a phone call from an unknown person stating that ‘they know he had become an Ahmadi.’  The applicant said that he did not know the identity of the caller and did not respond to him. The applicant did not elaborate on the circumstances in which he received the phone call or say what he did as a result of having received the call. The applicant did not provide any evidence of harm as a result of the phone call or provide any indication as to who may have made the cal. In addition there was no evidence of any subsequent phone call having been made to the applicant.  Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed as a result of the phone call made in or about December 2013 as claimed.

Reprisal actions by police

101.   The applicant claims that, as a result of the police taking no action in response to the reports made by him after each attack or incident, in or about December 2013 he received a letter from the [official] of [a court] stating that the Court was aware of all his enquiries about his matter to the Police and advising that a report by the police had been sent to the Court. The applicant claims that [an officer from Police] admitted that after checking all the records they found that the investigating officer did not perform his duties correctly.

102.   The applicant’s evidence was that he was not satisfied with the response provided by the police as he did not receive a remedial action letter from the [Court] that would safeguard his and his family’s safety. The applicant claims that the investigating officer engaged in reprisal actions. The applicant claims that in the event he returns to Pakistan there is a real chance he will be seriously harmed at the hands of the investigating officer. However, there was no evidence that the applicant has been threatened by the police. The applicant’s evidence as that the local police in the applicant’s area had confirmed in writing that the investigation of his matter had been deficient and that a ‘show cause’ notice had been issued to the investigation officer. The applicant’s evidence was that the investigating officer took no further action to assist the applicant which caused the applicant to leave Pakistan. The applicant stated that the officer had made contact with Mr [B] enquiring about the applicant after he had departed and expressed concern that his job was at risk as a result of the applicant’s complaint.[132] While it is understandable that the officer may have been upset with the applicant for having made the report, there is no evidence that he had threatened the applicant or that there was any real chance the applicant would suffer serious harm as a result of any police reprisals as claimed.  

[132] Applicants submissions dated 5 October 2018; AAT File No 1614343 @ f.63

103.   In each claimed incident, the applicant has sought to register a case with the police against unknown persons. In such circumstances where the applicant is unable to identify his alleged attackers, it is difficult to determine what the police would be able to do for the purposes of securing an arrest or to resolve the matter to the applicant’s satisfaction. In any event, based on the country information and the nature of the documents themselves as self-serving accounts of the applicant’s own evidence, the Tribunal has not accepted the documents as evidence of each incident or of the applicant having reported the matters to the police. Accordingly, the Tribunal does not accept that the reports were made to the police as claimed.

104.    Therefore based on the above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm as a result of any reprisal by the police as claimed.

New motor vehicle and threat on driver

105.   The applicant claimed that as a result of the threats described above, he purchased a new  [motor] vehicle and hired a driver in order to protect his family while they were being dropped off and picked up from school. However, the applicant claims that one day an unknown person approached his driver and threatened him to leave his job and asked how much money the applicant had received from the Qadianis to convert to their religion for him to be able to pay for the car. The applicant claims that as a result of having been approached his driver left his job and he was forced to sell the car at a loss.

106.   The applicant failed to provide any independent evidence of his driver having been threatened as claimed. The applicant did not provide the identity of his driver nor did he provide any evidence of the purchase or sale of the  [motor] vehicle.  In the circumstances where the threat was not made directly to the applicant and he has failed to provide any independent evidence of the threat as claimed. the Tribunal does not accept the applicant’s evidence in relation to the threat to this driver as claimed.  

107.   Accordingly, the Tribunal finds that there is no real chance that the applicant will suffer serious harm as a result of the threat made to his driver as claimed.

Applicant’s wife threatened at school – June 2014

108.   The applicant claimed that in or about June 2014 his wife was threatened in front of his children’s school. He claimed that while his wife was picking up their children from school an unknown man approached her and asked if she was the wife of the applicant. Upon confirming that she was the applicant’s wife the man said that they now know that ‘your children study at this school’. The applicant’s wife gave evidence before the Tribunal and confirmed that she had been approached by an unknown man while picking their children up from school claiming that ‘they now know’ what school the applicant’s children attended.

109.   The applicant and his wife were not able to say who made the threat. While the applicant claims that his wife was approached as result of his association with [Mr B], there is no evidence to support such a claim. The applicant and his wife both confirmed that the person did not identify himself or say what organisation he was from. In circumstances where the applicant claims he was identified as being associated with a person of the Ahmadi faith, more than two years previously (on or about  [February] 2012) and in dubious circumstances, it appears to be merely speculative to claim that he continues to be targeted by members of an extremist group.  Neither the applicant nor his wife gave any evidence that supported his claim that the person who approached the applicant’s wife was a member of a terrorist organisation or that he wanted to harm them as a result of the applicant’s relationship with [Mr B]. 

110.   Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed as a result of his wife having been approached by an unknown person outside their children’s school as claimed.

Motorbike attack in or about 2014

111.   Finally, the applicant claimed that he was attacked by two people on a motorbike in or about 2014 when he was traveling home with a friend that he used to play [sports] with known as [Mr G]. The applicant did not provide any statement from [Mr G] in relation to the incident and did not make any oral or written complaint to police. While the Tribunal accepts that the applicant may have been attacked as claimed, given that there appears to be no evidence that the attack was motivated by any sectarian group or that it was in any way connected to the applicant’s relationship with [Mr B], the Tribunal does not accept that there is any real chance the applicant will suffer serious harm as a result of the motorbike attack in 2014 as a result of the applicant’s relationship with [Mr B] as claimed.

General violence

112.   The applicant claims that repeated threats have been made against him and his family.  He claims that despite him registering the incidents with the police, the attackers have not been located. He claims that his attackers are members of terrorist organisations with worldwide links and that the police are unable to provide enough security to protect him and his family. The applicant claims that he felt insecure and that as a result he was not able to perform his normal routine at home and at work. The applicant claims that he made an application to [a government agency] requesting that he be granted a license to carry a weapon, which was refused. The applicant in his claim states that his request was denied and a policy letter was issued to him.[133] The applicant provided a letter dated 1 March 2013 to the [a government agency] requesting that he be granted a license to carry a weapon.  The applicant claims that he no longer feels safe in Pakistan and states that he can no longer live there.

[133] Applicants statement [File number deleted] @f.30

113.   It is reported[134] that there is considerable risk from crime in Lahore. Carjacking, assaults, armed robberies, home and shop invasions, and other violent crimes are prevalent in many major urban areas. Petty crime, such as theft of personal property, is also widespread. However, in 2018, it is reported that the overall reports of criminal activity in Lahore decreased by 1.6%.

[134] OSAC Pakistan 2019 Crime and Safety Report: Lahore.  The Punjab Police is the largest police force in Pakistan, numbering over 180,000 active members. However, funding, resources, and training for the police (as with the rest of the Pakistani police services) remain scant. Police resources and service remain well below Western standards, though the government is working to improve the situation through computerisation and modernisation. It is reported[135] that in 2018, Lahore city is monitored through approximately 10,000 surveillance cameras under the phased Punjab “Safe City” Project. The system features a 24-hour command centre where police officials monitor various areas of the city, looking for criminal or terrorist activities. These cameras also monitor traffic, with violators receiving mailed violations based on the license plate number. DFAT reports[136] that security forces in Pakistan have sought to tackle violent and organised crime across the country, particularly in the large urban areas. DFAT reports that Lahore, Karachi and other major cities generally have a higher level of crime than Islamabad due to the fact that a larger number of security personnel are deployed there relative to its population.

[135] ibid

[136] DFAT Report @ p.22

115. While the Tribunal accepts that there is a level of general violence in Lahore, it has found that the violence experienced by the applicant is not specific to him for the reason as claimed. Under s.91R(1)(c) of the Act, persecution must involve systematic and discriminatory conduct. That is, the mere impact of circumstances which an applicant may face in the future, even if arising from past persecution, would not constitute persecution for the purposes of 91R(1) unless those future circumstances include some systematic and discriminatory conduct by another person or persons.[137] In Chan v MIEA, McHugh J stated:

[137] WAKZ v MIMIA [2005] FCA 1065 (French J, 2 August 2005) at [49]. His Honour’s discussion does not refer specifically to s.91R(1)(c), however, the distinction that is drawn between ‘persecutory action on the part of the government or any other agencies’ and the impact of ‘non-persecutory questioning’ on an applicant’s fragile mental state appears consistent with the consideration of the requirements of s.91R(1)(c).

The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.[138]

[138] Chan v MIEA (1989) 169 CLR 225, per McHugh J at 429-430.

116.   In VSAI v MIMIA Crennan J stated that where conduct was shown to be serious harm is assessed as to whether it is ‘systematic conduct’ for the purposes of s.91R(1)(c), it would be wrong to require the applicant to show anything more than that it is deliberate or pre-meditated, that is, motivated. While the Tribunal has accepted that the attacks may have occurred as claimed, the Tribunal has not accepted that the attacks occurred by reason of the applicant being associated with an Ahmadi person or being mistaken as an Ahmadi person as claimed. Accordingly, the Tribunal finds that, in the event that the applicant was attacked as claimed, it was as a result of the general violence in Lahore rather than by any systematic or discriminatory conduct against the applicant or his family and as such there is no real chance the applicant will be seriously harmed by reason of such general violence in the event that he returns to Lahore.

Applicant’s land dispute

117.   The applicant claims that he was involved in a land dispute in Pakistan, which concerned land that his father had owned. The applicant claims that his father donated the land to a charitable organisation known as [the Trust]. The land was supposed to go to the applicant’s step brother who was under age at the time. The trust is associated with the Lashkar-e-Taiba (LeT). The applicant claimed that his father donated the land so that a school would be built on it.  No school was built rather an Islamic seminary was built. In or about 2009 the authorities approached the applicant and his family about the donation of the land to a trust associated with the LeT, but no action was taken against them.  As a result of the land being transferred to the Trust at a time when his step brother was underage the applicant went to the [court] to challenge the transfer of land. The trust and the applicant’s father were listed as defendants in the matter. The applicant provided court  documents headed ‘Suit for Specific Performance of Contract’[139] and ‘Special Power of Attorney’ dated [November] 2011[140] that relate to proceedings before the [Court] for specific performance of a contract over a transfer of land.

[139] AAT No 1614343 @ f.100

[140] Op Cit @ 98

118.   The applicant claims that since arriving in Australia he no longer knows the status of this case. It did not occur to the applicant that the threats he claims to have received may have been as a result of the land dispute. He does not know the current status of the proceeding.

119.   It is reported that land disputes are prevalent in rural and urban areas of Pakistan.[141] Illegal disposition of land is reported to be largely committed by influential persons including feudal lords, politicians, builders, government functionaries or heads of large communities.[142] Individuals or groups, known as ‘land mafia’, take or claim ownership of land and are known to dispossess true owners through legal or illegal means. In 2014 a report by the International Crisis Group (ICG)[143] indicated that due to urban population growth, competition over resources, including land and water, had become increasingly violent. The report notes that provincial capitals such as Peshawar, Quetta, Karachi and Lahore are all bases of operations and financing for a range of extremist groups and criminal gangs that exploit poor governance and failing public infrastructure to establish recruitment and patronage networks. Journalist Rina Saeed Khan has reported that in Lahore there is a well-connected land mafia that keeps its eyes on uninhabited plots and buildings in prime areas and moves in with fake ID cards to take possession, leaving the real owners to then pursue the case in the courts for years.[144] While the courts offer redress in relation to land disputes both at the local and federal level, those courts dealing with land disputes are backlogged, suffer from poor training and can be subject to corruption.[145] 

[141] United Kingdom Home Office Country Policy and Information Note Pakistan: Land Disputes Version 2.0 January 2017 @ [2.3]

[142] ibid

[143] International Crisis Group Policing Urban Violence in Pakistan dated 23 January 2014; Kahn, R.S. When land grabbers rule,’ The Express Tribune 28 January 2014; United Kingdom Home Office Country Policy and Information Note Pakistan: Land Disputes Version 2.0 January 2017 @ [2.4.2]

120.   It is reported that often blasphemy laws are used to make unfounded and malicious accusations to settle personal scores in land and business disputes.[146] There is no evidence of any such charges having been made against the applicant or his family in this case. 

[146] Op Cit @ [5.1.3]

121.   The applicant did not elaborate or provide any further evidence in relation to the land dispute. While the applicant now speculates that the attacks may have been as a result of the land dispute, his evidence was that he was that they were as a result of his association with [Mr B] and not as a result of the proceeding. The applicant did not provide any evidence as to the current status of the proceeding. As a result, there is no evidence that the applicant has been threatened or harmed as a result of his involvement in the proceeding. The applicant’s evidence was that the threats he had received were religiously based. In his submission to the Tribunal merely speculated that they may have been related to the proceeding. Therefore, in circumstances where the applicant is not able to say if the attacks were as a result of the land dispute and is unable to provide any evidence as to the current status of the proceeding, the Tribunal is not satisfied that there is a real chance he will be seriously harmed in the event that he returns to Pakistan.

122.   Therefore, based on the applicant’s evidence, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he returns to Pakistan as a result of the land dispute as claimed.

Applicant’s mental health

123.   The applicant also claims that in the event that he is returned to Pakistan there is a real chance that he will suffer serious harm by reason of his poor mental health. The applicant claims to be suffering for chronic trauma symptoms which resemble Post Traumatic Stress Disorder (PTSD). The applicant provided the [Mr H] Report in support of this claim. 

124.   The Tribunal has considered the applicant’s mental health and in particular the [Mr H] Report. The report appears to accept the applicant’s claims that he was threatened and attacked by unknown terrorists as the basis of the diagnosis without the applicant having identified any particular individual or group and in the absence of any independent evidence as to who carried out the attacks as claimed. Nevertheless, the Tribunal accepts that the applicant suffers ‘Other Specified Depressive Disorder’ (‘OSDD’) and ‘Post Traumatic Stress Disorder’ (PTSD). 

125.   The Tribunal notes that at the hearing the applicant was able to give clear and concise evidence to the Tribunal. He understood the proceeding and was able to answer all questions put to him by the Tribunal. As a result, the Tribunal was satisfied that his diagnosis of OSDD and PTSD did not affect his ability to give evidence and make submissions before the Tribunal. 

126.   The Tribunal notes that the country information reports that mental health is under‑resourced in Pakistan. The allocated mental health budget in Pakistan is 0.4% of total health care expenditure.[147] There are five mental health hospitals in Pakistan and the number of mental health outpatient facilities is 4,356, with 14 mental health day‑treatment facilities.[148] There are 18 NGOs in the country involved in individual assistance activities such as counselling, housing or support groups.[149] The total number of human resources working in mental health facilities or private practice per 100,000 population is 87.023, among which 342 are psychiatrists, of which 45% work for government-run mental health facilities and 51% work with non-governmental organisations and other private institutions.[150] This shows that infrastructure does not meet the population needs for mental health care.

[147] Muhammad Gadit, Amin A. "Is there a visible mental health policy in Pakistan?” Journal of Pakistan Medical Association.

[148]  W.H.O. Mental Health Atlas Country profile 2014

[149] Muhammad Gadit, Amin A, Op cit.

[150] World Health organisation, Mental Health in Pakistan, available at:  The country information reports that on 10 October 2019, Pakistan's President Arif Alvi launched the President's Programme to Promote Mental Health of Pakistanis.[151] The program is to be rolled out across Pakistan within five years. The first phase of the program is to emphasise the role of early-life interventions that promote mental health and prevention of mental illness, while the second phase is to train teachers in skills and strategies to promote mental health in their schools and the early recognition and management of mental health problems.

[151] The Lancet ‘Mental Health Care in Pakistan boosted by Highest Office’ by Zafar Mirza and Atif Rahman 21 December 2019,

128.   Therefore, while the Tribunal acknowledges that mental health care is generally under‑resourced in Pakistan, it appears that the issue has been recognised by the authorities and as such more resources are being applied to improve mental health care within the country. There is no evidence to suggest that as a Pakistani citizen, and in particular as a Sunni Muslim, the applicant would be denied medical care or that he would be denied access to health care at the same rate or opportunity as any other citizen of the country. As a result, the Tribunal finds that the applicant would be able to access health care in Pakistan at the same rate as other citizens.

129.   Accordingly, while the Tribunal accepts that applicant is suffering from mental health issues, there is no evidence that he would be denied access to such care on a systematic and/or discriminatory basis. As a result, the Tribunal finds that there is no real chance the applicant will suffer serious harm by reason of his mental health in the event that he is returned to Pakistan.

Conclusions on claims and Convention grounds

130.   While the Tribunal accepts that the claimed attacks may have occurred to the applicant, for the reasons expressed above, the Tribunal has found that he was not threatened as a result of his relationship with an Ahmadi person ([Mr B]) or as a result of a mistaken belief by unknown extremists that he had converted to the Ahmadi faith as claimed. Accordingly, Tribunal has considered the applicant’s claims and is not satisfied that he has a well-founded fear of persecution for a Convention reason. 

131. Having regard to all the circumstances and findings above, considered individually and cumulatively and having considered Article 1A(2) of the Convention and s. 91R of the Act alongside the available country information, the Tribunal finds that there is no real chance the applicant will suffer serious harm in the event that he returns to Pakistan for any Convention reason. That is, the Tribunal finds that he does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any Convention reason, and therefore does not have a well-founded fear of persecution.

132. As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

133. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for these purposes.

134. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. However, for the reasons set out in the body of this decision, the Tribunal is not satisfied that the applicant was the victim of attacks and threats as claimed by reason of his association with an Ahmadi person ([Mr B]) or as a result of a mistaken belief by unknown extremists that he had converted to the Ahmadi faith. Further, the Tribunal is not satisfied that the applicant has received threatening calls as claimed. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Pakistan there is a real risk that he will suffer significant harm on the basis of his association with an Ahmadi person ([Mr B]) or as a result of a mistaken belief by unknown extremists that he had converted to the Ahmadi faith.

135.   In addition, for the reasons expressed above, the Tribunal not satisfied that there are substantial grounds for believing that as a necessary or foreseeable consequence of his involvement in the land dispute that upon his return to to Pakistan there is a real risk that he will suffer significant harm.

Generalised violence

136. The Tribunal has also considered the issue of generalised violence in Lahore under the complementary protection criterion under s.36(2)(aa). That is, it has considered if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm as a result of the general violence in Pakistan.

137. Section 36(2)(aa) requires that the risk of harm to the applicant be a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan. The necessary and foreseeable consequence element of s.36(2)(aa) attaches to the risk of harm rather than the actual occurrence of harm. In this case, the country information reports that Pakistan continues to face security threats from terrorist, militant and sectarian groups, but states that since the commencement of the counter terrorism military operation Zarb-e-Azb in June 2014, Pakistani military operations against terrorists and militant groups have substantially reduced the level of generalised and sectarian violence throughout the country.[152] Therefore, while the Tribunal accepts that there is a level of generalised violence in Lahore, Pakistan that would not be acceptable to Australians, it does not accept that the risk of harm to the applicant will be a necessary and foreseeable consequence[153] of his return to Pakistan. Having found that the threats and attacks upon the applicant and his wife were not as a consequence of his association with an Ahmadi person ([Mr B]) or as a result of a mistaken belief by unknown extremists that he had converted to the Ahmadi faith, there is no evidence of a real (as opposed to a speculative) causal link between his removal from Australia and his exposure to the real risk of significant harm.[154] Section 36(2)(aa) of the Act requires that there be a ‘necessary and foreseeable consequence’ between the applicant’s return to Pakistan and the real risk of significant harm.[155] In this case there is no evidence of such a causal link between the applicant’s return to Pakistan and his risk of significant harm from any generalised violence.

[152] DFAT Thematic Report dated 15 January 2016 @ p.9

[153] SZSHK v MIBP [2013] FCAFC 125 (Robertson, Griffiths and Perry JJ, 13 November 2013) at [31]

[154] Department of Home Affairs, Complementary Protection Guidelines, section 35, as re-issued 21 May 2015.

[155] However, as discussed below under ‘Perpetrator of the harm’, it does not appear intended that the harm could directly arise from the act of removal itself.

138. Section 36(2B) of the Act provides that there is no real risk that an applicant will suffer significant harm if ‘the real risk is one faced by the population generally and is not faced by the applicant personally.’[156] The Federal Court has held that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[157] As the Tribunal has found that the threats and attacks upon the applicant and his wife as claimed were not as a consequence of his association with an Ahmadi person ([Mr B]) or as a result of any mistaken belief that he had joined the Ahmadi faith, any risk of general violence faced by the applicant is the same as for the rest of the population.

[156] s.36(2B)(c) of the Act

[157] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[13]. An application for special leave to appeal this aspect of the judgment was dismissed by the High Court: SZSPT v MIBP [2015] HCASL 114 (Kiefel J, 18 June 2015). See also comments of the court to similar effect in: the judgment at first instance in SZSPT v MIBP [2014] FCCA 1388 (Judge Raphael, 1 July 2014) at [15] (the provision would apply in a situation of ‘universal danger’, but not where the situation was ‘worse for a person of [a particular] ethnicity’); SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49] (risk must be ‘faced by the individual personally in light of the individual’s specific circumstances’); SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [24] (risk must be ‘particular to’ the individual); SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013) at [43] (risk must be faced ‘in light of [the applicant’s] specific circumstances’).

139.   Accordingly, the Tribunal finds that there is no a real risk of the applicant being significantly harmed as a result of the general violence, the event that he returns to Pakistan. 

Applicant’s mental health

140.   The Tribunal has accepted the applicant’s claim he has suffered from OSDD and PTSD.  There was no evidence of harm the applicant would suffer as a result of his mental health condition in the event that he returns to Pakistan. While the Tribunal accepts that mental health care is not at an entirely satisfactory level in Pakistan, care is available both privately and via the public health system.[158]

[158] Mental health: Priorities in Pakistan

141.   In any event, the definition of ‘significant harm’ under complementary protection requires an element of intent. That is an act or omission by which the significant harm (torture, cruel or inhuman treatment or punishment or degrading treatment or punishment) is intentionally inflicted upon a person for a specified purpose or reason. Therefore intent, in this context, requires an actual, subjective, intention on the part of a person to bring about the applicant’s suffering by their conduct.[159]

[159]  SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.

142.   The Tribunal has found that the claimed threats or attacks were not as a result of the applicant’s association with an Ahmadi person ([Mr B]) or as a result of any mistaken belief that he had joined the Ahmadi faith. As a result there is no actual, subjective, intention on the part of any person to have brought on the applicants mental depression or to cause him significant harm by reason of his mental illness upon his return to Pakistan.

143.   The Tribunal therefore finds that there is no real risk that the applicant’s mental condition will cause him significant harm upon his return to Pakistan.

144.   At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

145. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no 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 he will suffer significant harm as required by s36(2)(aa). The Tribunal therefore finds that Australia does not owe him any protection obligations pursuant to s.36(2)(aa) of the Act.

CONCLUSIONS

146. 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 s.36(2)(a) the Act.

147. 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).

148. 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).

149. The second, third and fourth applicants claim to meet 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 second, third and fourth applicants do not satisfy the criterion in s.36(2) and as such are not persons in respect of whom Australia has protection obligations.

DECISION

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

Jason Pennell
Senior Member