1614605 (Refugee)

[2018] AATA 3923

1614605 (Refugee) [2018] AATA 3923 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614605

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Denis Dragovic

DATE:18 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 September 2018 at 12:27pm

CATCHWORDS
REFUGEE – Protection visa – Pakistan – Federal Circuit Court remittal – religion – shia – particular social group – noha reciter – released noha album – mental illness sufferer – terrorist attack on applicant’s home – family members murdered – fear of sectarian violence – credibility concerns – fraudulent documentation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 424A, 499
Migration Regulations 1994 (Cth), r 1.12

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) first arrived in Australia on 11 June 2008 as the holder of a [temporary] visa. The applicant’s wife joined him in Australia on 5 July 2009 and the applicant’s children were each born in Australia.

3. The applicants, who claim to be citizens of Pakistan, applied for the visas on 14 March 2013 and the delegate refused to grant the visas on 17 February 2014. The Tribunal viewed copies of the first (‘the applicant’), second (‘the wife’) and fourth (‘the oldest son’) named applicants’ passports. The third name applicant (‘the youngest son’) was born in [Australia]. A birth certificate was provided showing his parents being the applicant and his wife. Pakistan citizenship rules state that the youngest son is also Pakistani.[1] The Tribunal accepts that these applicants are citizens of Pakistan and will assess their claims against Pakistan as the country of reference and receiving country.

   [1] Pakistan Citizenship Rules, 1952, 6 February 1951, accessed 13 August 2018.

4. I have also considered whether the applicants have the right to enter and reside in a third country. I find that they do not.

5. At the Departmental stage the delegate recorded that he did not consider the applicant to be a witness of truth and considered it implausible that a violent extremist attack at a large religious event in Sialkot would go unreported by every Shia advocacy group involved in the reporting of Shia deaths in Pakistan and concluded the applicant had fabricated his claims for the purpose of advancing his protection claims.

6. The matter is before the Tribunal because of a Court order [in] September 2016 that remitted the case by consent upon the basis of the Tribunal having committed a jurisdictional error in failing to consider an integer of the Applicant’s claim. The Tribunal accepted that the applicant was a religious reciter but did not accept that the claimed murders of their families occurred. The Tribunal reviewed the situation in Sialkot, Punjab province, and determined that the applicant did not face a well-founded fear of persecution. The court found that the Tribunal did not consider whether the applicant faced a real chance of serious harm during his travels to other parts of Pakistan while fulfilling his religious obligations as a Noha reciter.

7. The applicants first appeared before this Tribunal on 16 May 2017 to give evidence and present arguments before a Member whose term expired prior to a decision being made. The case was then heard by this Member on the 4 April 2018 and 3 September 2018. It was explained to the applicant that evidence provided to the first Member would remain as evidence to be considered by the current member.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

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

   RELEVANT LAW

10. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

11. 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).

12. 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.

13. 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.

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

15. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

16. 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.

17. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

18. 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.

19. 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.

20. 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

21. 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’).

22. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

23. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

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

    Member of the same family unit

25. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and children who have not turned 18. I find that the second, third and fourth named applicants are members of the family unit of the applicant.

    Mental Health

26. The applicant submitted a written statement by [a] Clinical Psychologist, dated [in] September 2014 in which the applicant is diagnosed as suffering from major depression and PTSD ‘due to traumatic loss of his family’. The letter notes that the applicant had been seen on four occasions.

27. The same psychologist provided a second report dated [in] July 2017 for the applicant. He has been seen by the author of the report twenty times. He is diagnosed with Major Depression and PTSD. The psychologist has noted suicidal ideation. The report repeats the applicant’s claims and makes statements that tie the applicant’s psychological state to his claims. I do not accept that a clinical psychologist is best placed to test evidence in an inquisitorial manner and as such give little weight to the causal connection she makes between his psychological state and the claimed reasons for them, nevertheless, I accept the psychologist’s clinical assessment.

28. The applicant was on anti-depressants at the time of the interview. I find that the applicant was lucid and able to fully participate in the hearing, while being attentive to the applicant’s ability to answer questions by taking an approach informed by the Tribunal’s vulnerability guidelines.

29. The second named applicant also provided a psychological report dated [in] August 2018. In preparing the report the psychologist had two appointments with the wife in August 2018. The psychologist diagnosed her with Major Depressive Disorder and Post-Traumatic Stress Disorder. I find that the second named applicant was lucid and able to fully participate in the hearing, while being attentive to the applicant’s ability to answer questions by taking an approach informed by the Tribunal’s vulnerability guidelines.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Summary of Claims

30. The applicant is a reciter of religious verses lamenting the tragedies surrounding the Shia Imams. He claims that his profile had risen as a result of a CD that he released in 2012. The threats culminated in an attack upon his house where his family members were killed. He avoided harm because he had momentarily left the house. In another incident he claims that his wife’s family have also faced harm. He feels compelled by his religion to continue to recite but fears that by doing so he will have to travel to places in Pakistan that will put him in danger.

31. The second named applicant did not have claims of her own at the application stage. Her representative in 2013 stated that she did not have claims of her own ([File number]). Yet the same submission noted that ‘her father, mother and brother were killed by extremist elements in Pakistan’. This is an incongruent position to hold which I discuss further below. Through her representative at the first hearing the second named applicant agreed to forego providing evidence and instead to provide a written statement. At the second hearing it was explained to the Tribunal that she was not well and would rely upon what was said in the past. A third hearing was organised to specifically hear from her.

32. The third and fourth named applicants do not have claims of their own, nor are there any claims arising from the evidence as presented by the parents.

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

    Evidence and Findings of Fact

    Threats Prior to and Incident on the 5^th day of Muharram 2012

34. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.  Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status.

35. On the other hand the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220). I will now proceed to consider the claims that form the basis upon which the applicants fears return to Pakistan, namely the threats he received prior to the incident on the 5th day of Muharram 2012 (‘5 Muharram’) and the events that followed.

36. The first threat the applicant claims to have received was [in] October 2012. He was at his Sialkot home in Pakistan when he got a call on his mobile phone from a caller who identified himself as being from Lashkar-e-Jhangvi, a banned terrorist organization. The caller threatened the applicant by saying that if he organized any religious commemoration in his home, as was tradition, he and his family would be killed. The caller wanted him to stop following the Shia faith and to stop reciting.

37. The applicant went to the police station to lodge a First Information Report (FIR)[2]. Within the following days no police followed up so he claims that he went to the District Police Officer requesting that police protection be provided. Copies of two letters related to these requests were provided to the Department of Immigration and Border Protection (‘the Department’). He didn’t hear back and petitioned again for protection.

    [2] A FIR is described as ‘a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR.’ In First Information Report: A Guide for Citizens, Centre for Peace Development Initiatives Pakistan, accessed 29 June 2018.

38. The applicant and his family hosted the religious event at their house [in] November 2012 as they had in the past. Four police officers appeared at his property for the event. After the event passed without incident the applicant went to the train station to see off some important guests. While at the station he received a call from his neighbor informing him of an emergency at their home. He claims that upon return to his home he came across the body of his [uncle] and his mother, both of whom had been shot to death. The applicant provided a death certificate ([File number] folio 1) for the uncle and mother ([File number]) along with detailed autopsy notes all of which stated that the cause of death was murder by gunshot.

1. Details of the incident were included in a FIR submitted to the Tribunal ([File number] folio 15). In summary, it states that two terrorists entered the premises and called for the applicant by name saying that they wanted to kill him and then started to fire indiscriminately. They then fled the scene.

2. The applicant claims to have then travelled to Lahore on the 24 November ([File number] folio 193) where he stayed at his uncle’s house. During the trip he felt ill and his uncle decided to take him to the hospital where he was [admitted]. An original medical report ([File number] folio 5) was provided, dated [in] December 2012, diagnosing him immediately with severe depression and noting admission into the hospital for two weeks. As a result he asked his uncle to change his travel dates from the 29 November to the 14 December. He left Pakistan and returned to Australia on the 14 December.

3. Two affidavits were provided, one by a neighbor, the other by his uncle who housed him in Lahore ([File number] folios 61 and 60).  The neighbor’s affidavit discusses the applicant’s requests for police protection, submission of the first FIR and the incident. In which in addition to details of the event they note that ‘unknown persons regularly used to come in his search’. The uncle’s affidavit similarly discusses the events including the applicant subsequently hiding in his house in Lahore.

4. A letter from [an organization], purportedly an NGO, was provided which stated that the incident that led to his mother and uncle’s death did occur (Tribunal File 1405314 folio 21). Another [similarly] attested to the incident (Tribunal File 1405314 folio 22). A third from [the] organization which produced the applicant’s Noha CD states that due to the release of the CD the incident described above occurred (Tribunal File 1405314 folio 24). A fourth, from [an official] of Anjuman-e-Sipah-e-Ahlebait attests to the incident occurring (Tribunal File 1405314 folio 26).

5. Two from news agencies, [also] attested to the incident and both spoke of the [news outlet] orders [which] prohibited coverage of the incident for reasons associated with a concern over violence between Shias and Sunnis (Tribunal File 1405314 folio 28 and 29). A letter from the [news outlet] was submitted, signed by the [two officials] explaining the reasons for not allowing the publication of any coverage of the incident. They also mention a second incident, the claimed attack upon the wife’s family [in] March 2013. The [news outlet] letter indicates that they were instructed by authorities to not publish news of the incident (Tribunal File 1405314 folio 30). A letter from the [member] of the organization Anjuman-e-Shia Asna Ashriya describes his request to the [news outlet] not to publicize the incident.

6. The applicant also explained that his wife’s family was targeted. [In] March 2013 he claimed that his wife’s father, mother and brother were killed by gunmen at their homes. The applicant fears that such events could happen again were he to return with his family.

7. In support of his fears the applicant submitted country information in the form of news reports of terrorism in Pakistan, the implication of the military in the killing of Shia as well as submissions by people who describe the situation in Pakistan as not being favourable for the applicant and his family to return due to sectarian killings and other submissions which purport to verify the occurrence of either the attack upon the applicant or in addition the attacks upon his wife’s family. The latter includes a statutory declaration by a friend, [who] claims to have heard about the 5 Muharram incident in December 2012 while he was at a meeting of a religious organization in Pakistan (Tribunal file 1614605 folio 61).

8. The applicant submitted a letter from his lawyer which summarized the case the applicant had presented to the court but concluded with remarks about threats he had received and his decision to withdraw from representing the applicant (Tribunal file 1405314 folio 168).

9. Three death threats on the letterhead of Lashkray Jhangvi were submitted after the previous Tribunal’s hearing on 3 December 2014 without being referenced earlier in any communication or interview. Each referred to the November 2012 incident suggesting that the applicant was lucky to have escaped.

10. The applicant had submitted a petition which his brother-in-law had made to the Sialkot courts for the registration of a case in which the applicant was mentioned (Tribunal file 1405314 folio 147). The petitioner noted in his submission to the court regarding the incident [in] March 2013 mentioned above, in which the applicant’s wife’s mother, father and brother were killed and that the applicant’s family had also experienced harm. The petition outlines the events of [November] 2012. Documents summarizing subsequent proceedings were provided. No further court documents were made available to show the outcome of the petition.

11. As the applicants’ case rests in part on a considerable number of documents the Tribunal summarized to the applicant information from DFAT about the prevalence of document fraud.

    Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.

    More broadly, DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common. People have also been known to pay news organisations to publish false stories in newspapers.[3]

    In response the applicant asserted that his documents were not fraudulent.

    [3] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 1 September 2017 at [5.43-5.44].

12. For the following reasons I find the applicant’s credibility to be lacking and his claims pertaining to the threats leading up to and the events following the claimed 5 Muharram incident to be baseless.

13. The applicant claims that he left Sialkot and travelled with his uncle [in] November to Lahore (according to his statement in [File number] folio 193). Contradicting this statement is a court document submitted by the applicant which states that he was present in a court petitioning for a case against the police [in] November (Tribunal file 1405314 folio 156). While it is possible that he was in the court in the morning and then travelled in the afternoon, a second document claims that he was in the Sialkot courts [in another date in] November despite claiming to have been hospitalized as of [a date in] November for two weeks (according to his statement found in [File number] folio 192). In this same statement he claims to have been discharged from the hospital [in] December yet additional court documents he submitted show him to have been present in the Sialkot court house [in] December and [in another date in] December (Tribunal file 1405314 folio 162 and 163).

14. These inconsistencies were put to the applicant under s.424A of the Act. His response was:

    The Applicant instructs that he did not attend the court, rather his brother in law [and] his lawyer attended on his behalf given he was in Hospital during his time. The Applicant instructs that given he was unable to attend, he provided the lawyer with the authority to act on his behalf and his brother in law assisted the lawyer. The Applicant instructs that it is plausible that the Court has inadvertently stated that he was present. He instructs that when a lawyer is present, the petitioner is not required to speak to the court. With respect, we submit that the applicant’s attendance has been incorrectly recorded by the Court. Particularly, we submit that courts are not always well run in Pakistan and given the large amount of work court staff are required to undertake they may have incorrectly recorded that the applicant was present at the hearings. As in many Australian Jurisdictions, when a lawyer is present, their client may not be required to appear before the report. Accordingly, we respectfully submit that the applicant’s credibility should not be discounted on this basis.

15. While I accept that it is possible that the Pakistani courts mistakenly recorded the applicant’s presence once I find that twice would be highly unlikely. I find the response to the inconsistency not to be convincing.

16. The applicant claimed at the hearing that he had received threatening phone calls since his arrival to Australia. I asked why he didn’t mention that during his hearings with the Department and first Tribunal. He said that the phone calls started after those hearings. I put to him his last Tribunal hearing was 3 December 2014. This is over two years after the incident. It is difficult to believe that no one had pursued him for two years and then after the last Tribunal hearing he received threatening calls. He then responded that the question hadn’t been asked. I explained to him that receiving threatening phone calls is directly related to his fear of returning and doesn’t require someone to ask him a question. He then changed tack again and claimed that his representative had told him not to divert from what was in the file. I put to him that it is hard for me to believe that a migration agent would tell him not to include something such as that. He said that he was given his record and told only to go through what was written. Considering the gap between his arrival and claimed calls along with his changing answer I find his claims that he received threatening calls not to be convincing. I find the applicant’s changing answers add to the questions that arise over his general credibility.

17. I read to the applicant elements of the s.424A letter produced by the previous Tribunal member, dated 13 January 2015, regarding the complete omission of any mention of the claimed 5 Muharram incident on major web sites that track terrorist attacks in Pakistan. Specifically I read out the following:

    ·The South Asian Terrorism Portal publishes lists of terrorist related casualties and casualties of sectarian violence throughout Pakistan. It makes no reference to the claimed attacks on your family members and records no terrorist incidents in Sialkot in 2010, 2011 or 2012 or 2013 and reports the death of one Shia in that city in 2013. It does however report less serious events in Sialkot in 2013, including the bomb squad defusing landmines in September 2013 and police demolishing minarets at an Ahmadi place of worship in the district;

    ·Factsheet Pakistan, produced by the US Commission on International Religious Freedom as part of its Pakistan Religious Violence Program, contains tables setting out statistics on targeted violence against religious communities in Pakistan. It makes no reference to the claimed attacks on your family members and records 77 attacks on Shias between Jan 2012 and June 2013, but none of those are recorded as occurring in Sialkot;

    ·The database of Let Us Build Pakistan makes no reference to the claimed attacks on your family members and records no attacks on Shias in Sialkot in 2012 and the death of one Shia in that city in April 2013.

    ·The Pakistan Institute for Peace Studied publishes a database of militant and terrorist attacks in Punjab between 2001 and 2013. It makes no reference to the claimed attacks on your family members and records only two incidents in Sialkot during that period which took place in 2004 and 2009 respectively.

18. He began by explaining why it wasn’t published. He claimed that instructions were given [to] the [news outlet] not to publish. He added that the central Shia organisation in Sialkot also stopped it from being published because they thought that it would only fuel further sectarian conflict. He added that not all information is uploaded and that international organisations take information from Pakistan databases and these databases only pick up those incidents which have been reported. Those NGOs that work in Sialkot have submitted letters explaining that it did happen but they couldn’t report it because of the pressure upon them. I asked why other sectarian events are reported in Sialkot. He responded Sialkot is rarely reported. I read to him from the DFAT Pakistan report at [2.30] which states: ‘While militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas’,[4] and suggested that the lack of reporting is because there aren’t a lot of incidents. He agreed that Punjab is relatively safer than other provinces, but doesn’t agree that Punjab is safe.

    [4] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 1 September 2017.

19. In considering the applicant’s claims I sought support from the Department to speak with the [news outlet] with the specific question: ‘Can you report on what [news outlet] of Sialkot orders [deleted] are about, as it is claimed that they are the basis upon which local journalists have been prevented from reporting on sectarian incidents.’

20. The response was as follows:

    Post phoned the [news outlet] and spoke to the [manager]. We asked about order numbers [deleted]. [The manager] advised that these numbers are not authentic. He stated each order starts with ‘[letters]’ followed by a full stop, followed by the last two digits of the year the order is made, followed by a back slash and finally a reference number (example: [name]). Post asked if the [letters] had passed any orders in 2013 that prevented journalists from reporting on sectarian incidents. [The manager] said that [the news outlet] does not have the authority to pass such orders, that it would be unlawful to pass such orders and it had not passed such orders. He stated that even the Pakistan Electronic Media Regulatory Authority (PEMRA) does not impose such restrictions on journalists.

21. This was put to the applicant under s.424A of the Act. The representative responded with the central element being the following:

    The Applicant instructs that to the best of his knowledge the orders were made and relied upon to prevent journalists reporting on the incidents involving his family. The Applicant instructs that it is election time in Pakistan and many members of extremist groups are contesting the upcoming election, as such he instructs that it is likely the [the news outlet] is highly vigilant that they may face issues if they liaise or cooperate with the international community or organisations. Accordingly, the applicant believes that may be the reason the [news outlet] have advised that the orders did not exist. In this regard, the Applicant has provided the enclosed article showing an attack on the [news outlet].

22. The applicant subsequently submitted on the 12 July 2018 a letter claiming to be from [a senior person] of the [news outlet]. In the letter it states:

    This is to confirm and acknowledge that claims numbers [deleted] are true and correct. I also confirm that [the news outlet] barred the journalist community to publicise the claimed incident as we feared it may cause further unrest and security issues in the local community.

23. I accept that the [news outlet] has been attacked in the past and that any [outlet] may be reluctant to transparently liaise with the international community. But considering the clarity with which the manager of the [news outlet] responded to the Department’s enquiries, including specifically giving examples of the type of numbering used for their Orders, the independence of the source and the availability of fraudulent documents in Pakistan. I find that the claimed [news outlet] orders are false and all documents referencing them fake.

24. Without the reasoning the applicant used to explain why the 5 Muharram incident didn’t appear in four major terrorism tracking websites, the fact that the claimed incident does not appear on any website leaves me with great doubt as to whether the event occurred.

25. The applicant submitted to the first Tribunal hearing documents pertaining to his own petition to the courts (dated [in] November 2012) for action following the claimed attack on his house. In this instance the claim is that it occurred at 9pm, that it involved two attackers and that they entered the house. This information is contrary to information provided by a witness. The applicant provided the name and phone number of a neighbor who lived near him in Pakistan and was aware of the 5 Muharram incident. The Tribunal called [the neighbor]. He said that he was at his own house about three doors down from the applicant’s when he heard gun shots. He went outside and found a crowd in front of the applicant’s house. He didn’t go inside but learned that two or three people were killed, he knows that it was the applicant’s uncle and mother; he wasn’t sure about the third. When asked about when the shooting occurred he said it was during the afternoon between 3pm and 5pm.

26. The inconsistency regarding the timing of the event was put to the applicant under s.424A. The applicant responded in writing:

    The Applicant instructs that he believes that [the neighbour] may have been confused when providing information to the Tribunal. He instructs that given the time that has passed since the event occurred, it is highly plausible that [the neighbour] cannot recollect the precise time of the incident. As outlined by previously by the applicant, the 5th of Moharram event usually commences in the afternoon and runs into the evening. Given the event runs for a long time, it is further plausible the witness could not precisely recollect the time of the incident.

27. I accept the possibility that the witness may not recall the exact timing of the event but I do note that it is literally a matter of night and day. While time has passed since the claimed incident, I would expect that the witness recalling the event would remember that it was dark or light. As such I give some weight to the witness’s statements and the inconsistency that arises.

28. The second named applicant provided a statutory declaration detailing her knowledge of the 5 Muharram incident. As she was not in Pakistan at the time of the incident I give limited weight to her evidence.

29. In considering the applicant’s overall credibility, I have taken into consideration my conclusions on the applicant’s individual submissions as detailed above. In summary I found the applicant’s claims to be unconvincing, including his response to the court documents showing the applicant to be present in Court when he had also claimed to be in hospital, his reasons for not informing the Tribunal of threatening phone calls while in Australia, his reason for why there was no reporting on the claimed murders in major terrorism tracking sites, his submission of documents which I found to not represent the [the news outlet] and the inconsistent statements between the witness and the applicant. I note that the applicant’s case is built in part upon documents, a source which the Department has flagged as being highly susceptible to fraud. Despite the applicant providing consistent information and corroboration by his wife on balance I find that the substantial inconsistencies and independent information weighs significantly against the applicant’s credibility. As such I find that events leading up to, during and after the claimed 5 Muharram event did not occur. This being the central element of their claims I find that the applicant and his wife generally lack credibility having contrived a major element of their claim. As the basis upon which I make this finding is not the applicants’ oral evidence, I find that the first named applicant’s mental health concerns play no role in potentially explaining the inconsistencies. I find that the applicants have manufactured the central claims including supporting documents such as other’s statements and post mortem reports of the deaths of family members.

1. Having found the applicants’ credibility is lacking in the key claim that they have put forward I also find them not to be credible witnesses. As such I do not accept other claims including that suspicious people visit his family’s home, that the father and brother of the first named applicant received threats previously, that he received threats after arriving in Australia and that he initiated a court case against the police through a lawyer. I do not accept that he is a member of a well-known family in Sialkot, Pakistan, his father was [a senior member] of two religious organizations or his brother was [a senior member] of a religious organization. I do not accept that the applicant receives invitations to travel throughout Pakistan and internationally to recite Noha.

2. The following claims were supported by independent sources and as such I give them more weight.

3. The applicant claims to be a religious reciter of Noha, which are laments depicting the martyrdom of the Shia imams. They express the sorrow felt by Shia Muslims for their deaths. His first CD was released [in] November 2012. Since the release of his CD he claims that he has become a famous religious reciter. In support of this claim the applicant submitted a letter of support from [an organization] ([File number] folio 40) stating that the applicant is a ‘well known and recognized Noha Khawan (religious reciter) of our community’. In addition he provided links to invitations and Facebook posts for his most recent recitals in Australia. I put to the applicant that none of his Youtube videos garnered more than a [number] hits as of the time of the hearing. He responded that he hadn’t used marketing tactics to spread his name and subsequently in a post hearing submission his representative stated that he used other media channels, and that collectively this contributes to his high profile. He provided a link to a page in which his recitation was uploaded and has had over [number] views. I note that this is driven by the popularity of the Facebook page and not by the applicant’s renown, as every post on that page has similar viewing figures. I also note that the earlier member put to the applicant that other famous Noha reciters had Youtube videos with hundreds of thousands and millions of hits. He responded that others have been doing it longer than him and his period of reciting coincided with the shutdown of Youtube. I accept that the applicant is well-known in limited circles of Noha reciters and those who follow them, but I do not accept that he is famous, high profile or prominent in the wider community.

4. The applicant was in Australia on a [temporary] visa (after arriving on 11 June 2008), when he was approached by a Pakistani organization to record a CD in October 2012. He accepted and travelled to Pakistan on 14 October 2012. I accept his explanation for travelling to Pakistan and the dates which were provided as they are consistent with Departmental movement records.

   The wife’s claims

5. The applicant also explained that his wife’s family was targeted. [In] March 2013 his wife’s father, mother and brother were killed by gunmen at their homes. The applicant fears that such events could happen again were he to return with his family.

6. The second named applicant did not have claims of her own at the application stage. At the first Tribunal hearing she and her representative agreed to make written submissions. A written submission was received on the 31 May 2017. The list of claims included:

   ·Her mother, father and brother were killed at their homes

   ·She believes that they were targeted for their involvement in the Shia community

   ·The death of her husband’s family members

   ·She is fearful that her and her family will face the same fate upon return to Pakistan.

7. A third hearing was specifically organized to allow the applicant’s wife to provide evidence. She explained that she feared returning to Pakistan because of sectarian violence. I put to her that country information states Punjab has the lowest level of sectarian violence in Pakistan. I read to her from the 1 September 2017 DFAT Pakistan report at [2.30]: ‘While militant attacks can occur anywhere Punjab province tends to experience fewer incidents than other areas.’ She responded that in reality the situation is worse than what is written there.

8. She said that she has experienced sectarian violence herself. She said that her mother, father and brother were killed. It occurred [in] March 2013. Her brother used to recite Noha for an organization called [name] and that is why he was targeted. I asked if her brother was involved in anything else and whether there could be another reason, she said that she doesn’t know. All she knew is that he used to recite Nohas.

9. I raised with her under s.424AA of the Act that no country information was found recording the claimed incident that involved her family member’s deaths (the same sites as listed in [55] of this decision). She said not all incidents are recorded. She said that she didn’t know why they weren’t reported. I also put to her under s.424AA that at the first Tribunal she had said that her brother was targeted because of his involvement in the Mukhtar Force and had not mentioned that it was because he was a Noha reciter. She responded that her brother was a part of the Mukhtar Force but then left it and joined the [named organization]. I place no weight on this inconsistency as it would be speculation on her part to presume to know why her family members were killed unless clearly told, and according to her evidence this was not the case.

10. I asked her if she knew that an earlier submission blamed this lack of coverage on the [news outlet. She said that she didn’t know about that.

11. The applicant stated that he provided documentary evidence of the circumstances surrounding his wife’s family’s deaths. I noted that the latest DFAT report states that document fraud is endemic in Pakistan [5.43].

12. For the same reasons given above I do not accept the second named applicant’s explanations as to why the sectarian deaths of her family members were not reported in any of the major tracking sites. Specifically, information on databases that track sectarian violence have recorded less substantial attacks, and do not record an event [in] March 2013 as described by the applicants. The reasoning given by the applicants that this is the case, namely, that suppression orders were given by the [news outlet], I have found to be false. As such I do not accept that the second named applicant’s family members have been killed.

13. The first and second named applicants stated that the wife’s [brothers] are living in [another country] after having fled Pakistan for fear of their lives. Not having found the applicants to be credible I do not accept this claim.

14. The second named applicant told the Tribunal that she had not personally experienced any harm while living in Pakistan. She also stated that she hadn’t been harassed as a female in Pakistan. Although I have found the applicants to be lacking credibility, due to there being no possible ulterior motivation for the second named applicant to not tell the truth in this instance, I accept her statement as fact.

    Considerations

    Fear of attack for being a Noha reciter and Shia

15. I provided to the applicant evidence in the form of news reports of famous reciters marketing their efforts and asked him why he thought that they weren’t afraid. He responded that religion requires this and so they won’t be stopped. I asked repeatedly why they were seeking publicity and attention if, as he claims, they are concurrently being targeted for their Noha albums. He responded that some people want to be famous but nevertheless they are afraid. I do not accept this. The media commentary in articles such as, ‘Pakistani musicians gear up for release of marsiya, Noha albums’ shows them as actively promoting themselves. One such article reads:

    LAHORE: With Muharram right around the corner, most cinemas and other recreational outlets have announced a brief hiatus. On the other hand, Pakistani artists, such as Shazia Manzoor and Humaira Arshad, are gearing up for the release of their marsiya and Noha albums.

    At the moment, most production houses and studios across Lahore are actively preparing to release Muharram-related content wherein artists pay tribute to the great sacrifices of Imam Hussain and his family in Karbala. Manzoor and Arshad are joined by Ali Badar Miandad, Maham Rahman, Anwar Rafi, Shahida Mini, Imran Shaukat Ali, Ejaz Sher Ali, Naseebo Lal and Saira Naseem, all of whom are releasing marsiyas and Nohas within the next two weeks. Not to forget, a large number of newcomers are also following their lead.

    “This year, I am releasing an entire album of marsias and Nohas, both new and some of my old ones,” Miandad told The Express Tribune. “There is no commercial ambition behind this though. My album is purely religious in nature and I believe it is the duty of every Muslim to pay tribute to the martyrs of Karbala in their own way,” he added. Arshad echoed his sentiments, saying that the recitation of religious material has been in her family for generations. “I feel very lucky as my mother and I have been reciting marsias and Nohas ever since I was young,” she revealed. “At the start of my career, I paid tribute to Imam Hussain and also released an album of naats before.  This Muharram, I am releasing a marsiya.”[5]

    [5] Published in The Express Tribune, October 3rd, 2016, Accessed on 9 July 2018.

16. Nevertheless, I do accept that some Noha reciters have been attacked; during the first hearing the member noted that in June 2006 Amjad Sabri, a well-known Sufi was gunned down by the Taliban in Karachi. It was put to the applicant that there is no evidence regardless of the popularity of a reciter that they would face a real chance of serious harm. The applicant responded that it isn’t only in Karachi where reciters are at risk. He said that he knows of many who have fled in fear for their lives and internet searches won’t show this information.   

17. I read to the applicant from the 15 January 2015 DFAT Thematic Report: Shias in Pakistan at [4.3]:

    DFAT assesses there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high-profile professionals

    I note that this report aligns with the latest 1 September 2017 DFAT general report on Pakistan which on this issue reads:

    Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups. High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.

    I put to the applicant that some Noha reciters could be ‘high-profile professionals’ but I do not accept that all are, nor that Noha reciters are uniquely targeted.

18. The applicant responded that the largest group of people who have lost their lives as minorities are the Shias. When there is a religious attack on a congregation even ‘average’ Shia are at risk. This matter was discussed at length at the earlier hearing. It was put to the applicant that the rate of incidents from terrorist activities has substantially reduced and that the rate of incidents against Shia in Punjab is lower than other parts of Pakistan.[6] He responded that the incidents are not decreasing but simply aren’t being reported. The question before me is whether the applicant would be considered ‘high profile’ and if so whether ‘moderate threats’ amount to a real chance or risk.

    [6] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 1 September 2017 at [3.42] and [3.51-53]

19. I note that I have not accepted the previous incidents of violence that the applicants have presented as having occurred to them. Instead, I accepted that the applicant is ‘well-known in limited circles’. But I differentiate well-known in limited circles from high profile or prominent as used by DFAT in its country-wide reports referenced at [84]. Those listed in the above article on Noha reciters are high profile and prominent. The applicant does not appear in any such reporting. Those who have hundreds of thousands of hits on Youtube are high profile and prominent. The applicant’s uploads receive views in the [number] unless they appear on other’s websites. He may be well-known in a certain small circle of people but this does not translate into a high profile. When considering the reasonably foreseeable future it would be speculative to assume he would become a prominent Noha reciter. In assessing these claims I find that the applicant’s risk is based upon being Shia rather than a high-profile professional Shia. The information provided by DFAT states there is a ‘low risk’ of sectarian violence for Shias. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.

20. In remitting the case back to the Tribunal the Court accepted advice from the Department as the First Respondent that the decision failed to consider whether the applicant would face harm ‘during his travels to other parts of Pakistan, for the purpose of his religious activities.’ As the information available to the Tribunal from DFAT is country-wide, there is no increased chance/risk to the applicant if he chooses to travel to other parts of Pakistan.

21. For these same reasons I find that the other applicants similarly do not face a real chance of serious harm, or a real risk of significant harm for reasons of being Shia.

    Risk of harm because of mental health issues

22. The representative claimed that the applicant faces harm due to his mental health. I asked the applicant if he could afford private psychological care in Pakistan. He said that there are very few psychologists in Pakistan and that they have high fees. I note the report from Al Jazeera America provided by the representative in their submission to the tribunal dated 19 July 2017 shows overall public health expenditure on mental health is low.

23. I put to the applicant that he was well educated, had a job when he was in Pakistan, has family in Pakistan and was a religious reciter, and asked why he couldn’t afford a psychologist. He explained that previously his father was supporting him with fees and expenses but now reciting is the only way that he can support himself, and if he can’t do that then how could he support himself? I put to him that he worked in a [company] before, but he responded that he can’t work in such jobs due to his mental health issues.

24. I do not accept that the applicant would be deprived of accessing psychological services. But I accept that the quality of treatment will be lower. I do not accept that lower quality of psychological support services would lead the applicant to face serious or significant harm.

    Other considerations

25. The second named applicant noted in her statutory declaration that she feared return for reasons of being involved in the Shia community in Australia. Given that I have found that being a Shia does not lead to a real chance of serious harm or a real risk of significant harm, and there was no evidence provided or available to the Tribunal that suggests being a Shia in Australia adds to the risk, I find that none of the applicants will face any adversity for reason of being involved in the Australian Shia community.

26. I have also considered whether the first named applicant’s mental health situation would exacerbate any of the possible harm discussed earlier by making him more susceptible to risk or increasing the severity of the harm to him as an individual. In no situation does either arise.

    Conclusion

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

    DECISION

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

    Denis Dragovic
    Senior Member