1616309 (Refugee)

1616309 (Refugee) [2018] AATA 5063 (10 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616309
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Paul Windsor
DATE:10 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 10 December 2018 at 2:47pm
CATCHWORDS
REFUGEE – Protection visa – Pakistan – follower the Deobandi sect of Islam – fearful of being subjected to serious harm from followers of the Barelvi faith – political opinion – supporter of the Deobandi movement – active member of the Pakistan Muslim League – vague, inconsistent and unconvincing evidence – decision under review affirmed

PRACTICE AND PROCEDURE – s438 certificate not valid
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 19 September 2014 and the delegate refused to grant the visa on 23 September 2016. The delegate refused the visa because she did not accept any of the applicant’s claims were credible apart from his claim to be a follower of the Deobandi movement within Sunni Islam and that there has been tension between the Deobandi and Barelvi movements within Pakistan.
The applicant applied to the Tribunal for review of this decision on 4 October 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]
[1] See folios 1-8 of the Tribunal file.
The applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his Protection visa application [the applicant] claims to be a citizen of Pakistan who was born in [City 1] in Punjab province Pakistan on [date of birth]. He states he belongs to the Punjabi ethnic group, is a Muslim and that he speaks, reads and writes Urdu and English. He indicated he was married [in] 2009 and has two sons. [The applicant] states he departed Pakistan legally [in] September 2014 via Islamabad International Airport and arrived in Australia [in] September 2014, entering on a [temporary] visa.[2]
[2] See folios 2-29 of the Departmental file.
Summary of claims from the Protection visa application

[The applicant]’s claims for protection from his Protection visa application are summarised as follows:[3]
·He left Pakistan due to a dispute with a religious group.
·He belongs to the ‘Dueband Maslik’ (Deobandi sect) and [Mr A] is the leader of their community in his home town of [City 1] in Jhelum district. He was harmed two times by [Mr B] and [Mr C], two members of [a] group who belong to ‘Bralvi Malik’ (Barelvi sect). The first time they kidnapped his wife, releasing her after 28 hours. The second time they opened fire at his home and tried to kill him.
·He is sure that [Mr B] and [Mr C] will kill him if he returns to Pakistan. The Barelvi community is very angry with him and they will kill him. The Barelvi community in his home town blame him for insulting their leader. He will not be safe in his home town or where he currently resides in Rawalpindi or in other cities because they are tracing his calls and locations.
·There are many religious victims in Pakistan and the police fail to protect them. Police are corrupt and you need money to file a First Information Report (FIR). He was advised by [a senior official] that he would be better off to leave Pakistan. The [senior official] said his family is outside the country. No-one can guarantee the protection of people involved in religious disputes.
[3] See 19-22 of the Departmental file.
The applicant included an English language translation of a claimed FIR dated [October] 2013 among documents submitted with his application. He indicated that he would provide a copy of another FIR dated [August] 2014 once he receives it from Pakistan.[4] At the time of decision he had not provided this document.
[4] See folios 5, 18 and 94 of the Departmental file.
The applicant included a further statement of claims with his application.[5] Relevant additional matters from this statement are summarised as follows:
·He was working in Rawalpindi City and living with his parents before he came to Australia [in] August 2014.
·In December 2012 he visited his native village [City 1]. While there he met some friends at a [location]. As they belong to the same Maslik (sect) they started to talk with each other and were discussing the knowledge and studies of their religious leader [Mr A]. They were interrupted by two [persons], [Mr B] and [Mr C], who were against their Maslik and religion. They started to ‘appreciate’ their [leader] and said [Mr A] has no knowledge, causing a quarrel between them. He and his friends insulted them and some other persons came between them and tried to solve the situation.
·[Mr B] and [Mr C] went from there threatening them. They brought the problem to the notice of their community who supported them and said he (the applicant) should be brought before them and beaten.
·[Mr B] has taken his phone number and said they have decreased the respect of their leader and they will not ‘leave’ them, so he left for Rawalpindi to save his life from them. They threatened him on the telephone but he saved himself from them.
·[In] October 2013 his wife went missing when she went to his uncle’s house to collect their [son]. He went searching for his wife with his relatives and also reported the matter to the police for registration of a case against unknown persons for kidnapping his wife. After some time they released his wife and said to her that if her husband meets them today he will surely kill him. When he told the complete details to the police they said that as his wife has come back to her house they cannot take action against the concerned persons.
·After that he applied for a [visa] for Australia which was granted on 5 June 2014. He informed his friends by phone that he was going to Australia on a [temporary] visa. [Mr B] and [Mr C] also found out and at about [time] pm [in] August 2014 came to his house in Rawalpindi and knocked on the door/rang the bell. He saw them from an upper window and did not answer the door. They then called his name and started firing in the air. All the residents [came] out of their houses. He also informed the police but on reaching the scene [Mr B] and [Mr C] had disappeared. They were threatening to kill him for insulting their religious leader and abusing them, so will not leave him.
·He is quite sure his life is not safe in Pakistan. He informed his community but they could not help him. He had a handsome salary and bank balance in Pakistan and owned some property. He would not have thought about leaving if he did not have this problem.
[5] See folios 106-107 of the Departmental file.
The applicant attended an interview with the delegate on 7 September 2016. His then representative provided a submission dated 22 September 2016 in support of his application, aiming to address concerns raised by the delegate at the interview.[6] Relevant additional matters from this declaration are summarised as follows:
·The applicant follows the Deobandi sect of Islam and is fearful of being subjected to serious harm from followers of the Barelvi faith, who have a great disdain towards his religious community.
·After the quarrel occurred in December 2012 the applicant received numerous threats from [Mr B] and [Mr C], who are both followers of the Barelvi faith.
·His wife was kidnapped and harmed in October 2013 and his family was further threatened in August 2014.
·He was concerned that false accusations were being made against him and that blasphemy charges would be brought against him. These laws are regularly misused in Pakistan and as a result innocent individuals are subjected to serious harm. As such he felt he had no choice but to flee Pakistan in August 2014.
·As [Mr B] and [Mr C] are well-known members of their community they had the ability to influence their wider community to believe the applicant was against their faith. He is at risk from the wider Barelvi community.
·A 2014 report from Minority Rights International indicates that there are tensions between the Barelvi and Deobandi communities in Pakistan, which ‘are perceived by hardliners to be at odds with one another’.
·Despite requesting assistance from the authorities they were not willing to assist him. They are prone to corruption and unable to uphold the rule of law.
·He would not be able to relocate to avoid serious harm as the Barelvi Community have strong networks throughout Pakistan and he would be at risk wherever he went. It would also be unreasonable as he has no support networks outside his home area, a young family to support and his mental health has been severely affected by the issues he faced in Pakistan.
[6] See folios 115-118 of the Departmental file.
[The applicant]’s current representative provided pre-hearing submissions in support of the application dated 30 November 2018, including a statutory declaration by [the applicant] of 28 November 2018.[7] Relevant additional matters raised in the statutory declaration are summarised as follows:
[7] See folios 96-110 and 119-131 of the departmental file.
·He left Pakistan from fear of persecution due to his religious affiliation and political opinion as a supporter of the Deobandi movement.
·He has received death threats since an altercation he had in December 2012 with two members of the Barelvi movement.
·In the initial altercation in December 2012, when [Mr B] and [Mr C] interrupted the conversation of [the applicant] and his two friends, it was [the applicant] (who was sitting nearest to [Mr B] and [Mr C]) who, in response to their confrontation, insulted their religious leader and argued back with them. His friends initially tried to defuse the situation but he became upset at the insults to his faith and leader and reacted by insulting their faith in return. He also had more knowledge of the Deobandi movement and thinks that is why his friends were quiet while he responded to [Mr B] and [Mr C]. He was called a Kafir (disbeliever of Islam) and Gustakh-e-Rasool (a person who disrespects and disobeys Muhammad). He responded by called them Mushrik (those who accept other gods and divinities) and Munafiq (hypocrites who outwardly appear Muslim but inwardly conceal disbelief) and said their belief is very close to the Hindu religion. These insults are all very serious to those who practice Islam.
·After his wife went missing in October 2013 he received a phone call from her 28 hours later. She doesn’t know where she was held and was returned in a bad way and was not completely coherent. He believes she had been assaulted as her clothes were covered in blood but she refused to talk with him or anyone about it, or to have a medical examination.
·His wife told him she recognised the kidnappers who she said threatened her and told her they would not leave her husband alone because he insulted their faith, their religious leader and Muhammad. He and his wife did not pursue the matter with the police and had to pay the police to withdraw the case. His wife did not want the public display of going to court and having her kidnap and assault discussed in the media, which would have brought her shame and humiliation. He respected her decision.
·He thinks the kidnapping was potentially an act of trying to humiliate him and his family. There were some witnesses where she was dropped off and rumours spread about what had happened. It was reported by the local media but he did not keep any of these reports as he never thought he would need to use them.
·He has not returned to [City 1] since the incident [in] December 2012. [Mr B] and [Mr C], however, have still contacted him through his mobile phone, calling or texting with death threats saying that ‘whoever insults our leader Muhammad the punishment is death’. He thinks they would have been able to get his number through calling telephone companies or bribing officials for his details.
·When he was granted a [visa] for Australia on 5 June 2014 [Mr B] and [Mr C] found out about this and came to his house [in] August 2014. He reported the incident to the police and was advised by a senior police officer there was nothing they could do and that the only way for him to be safe was for him to leave the country.
·The Deobandi community said they could not help him because of the type of insults used. They were fearful of becoming involved in something that could be conceived as blasphemy.
·As far as he is aware his family have not been targeted again.
·If he retuned [Mr B] and [Mr C] would be able to track him through phone companies or officials as they did before. His whereabouts would be known within a week as word of his return would spread.
·He also has political concerns as he was an active member of the Pakistan Muslim League (Nawaz) - PML(N), who are no longer in government. [A] member was recently sentenced to life in prison on narcotics charges, after announcing he would contest the upcoming elections against the Awami Muslim League (AML). Everyone knows PML(N) was under observation by Pakistan’s Inter-Services Intelligence (ISI) for being anti-establishment and it was evident these charges were a baseless attempt to silence the PML(N) during the next election.
·He has been publicly critical of the AWL, particularly that the party is endorsed by the ISI and therefore shouldn’t have any credibility as a government. He has posted on social media and consistently across various [social media] groups that ISI manipulate elections to their benefit. People who speak out against ISI go missing and there is a clear crackdown on dissent of this kind in Pakistan.
·He had been granted [visas] for Australia in June 2011 and December 2012 but did not travel due to family and work commitments. He was granted a further visa in June 2014 but was still not thinking of going to Australia for protection, but after [Mr B] and [Mr C] came to his home [in] August 2014 and fired their weapons outside his door he knew he would never be safe in Pakistan again.
·This was an unexpected turn of events and one that has brought him immense grief. His life in Pakistan was good before this incident as he had family, money property and a good [job]. Now all his assets have been frozen and he is relying on charity in Australia to sustain himself. His current situation is awful and he is dealing with depression, anxiety and stress as a result.

[The applicant]’s representative submits that, as a supporter of the PML(N) and a campaigner for its leader Hanif Abbasi, [the applicant] is at increased risk of serious and significant harm due to the election of Imran Khan as Prime Minister, commenting that the PML(N) is an outspoken critic of Imran Khan’s government, while the Pakistani establishment had indicated its unwavering support for Imran Khan and the Pakistan Tehreek-e-Insaf (PTI) (Imran Khan’s party). He adds that in 2016 Abbasi challenged Imran Khan’s eligibility to be Prime Minister in the Supreme Court, which was dismissed after Imran Khan became Prime Minister and cites a report carried by Pakistani media outlets indicating that the Pakistan military and ISI chose Imran Khan to lead the country because PML(N) and the Pakistan People’s Party (PPP) were ‘difficult to manipulate’. It is claimed that [the applicant] faces a ‘volatile political situation’ in Pakistan because the PML(N) remains in opposition and because of the targeting of its leaders, ministers and supporters during and after the elections.
It is also submitted that [the applicant]’s claims have not been assessed against the changing political landscape in Pakistan whereby his Deobandi faith has been corrupted by extremists and his political party is in decline. It is submitted the delegate failed to appropriately assess his profile of risk as a moderate Deobandi follower who has confronted Barelvi followers and may be imputed to follow and or adhere to extremist Deobandi views.
The representative also submitted a number of supporting documents regarding Barelvi activism and extremism in Pakistan and the relationship between Barelvis and Deobandis.
Findings and reasons
The issues in this review are whether there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s identity
On the basis of the copy of the applicant’s Pakistan passport provided to the Department,[8] and noting the delegate’s findings in relation to this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be. The Tribunal accepts that Pakistan is the applicant’s country of nationality for Convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.
Purported s.438 Certificates
[8] See folios 33-63 of the Departmental file.
Two files were provided to the Tribunal by the Department relating to [the applicant]’s application in November 2012 for a [temporary] visa [and] his application in June 2014 for a [temporary] [visa]. Both these files contain notifications to the Tribunal regarding the disclosure of certain information under s.438 of the Act. In both cases a delegate of the Minister for Immigration and Border Protection has certified that s.438(1)(b) applies to information at certain folios because the disclosure of the information ‘would be contrary to the public interest because these documents, or the matters contained in the document, were provided by or given to an officer of the Department, in confidence’.
The Tribunal discussed the presence of these certificates with the applicant at the hearing. The Tribunal put to the applicant that it had formed the view that both certificates are invalid because, in the Tribunal’s view, the documents referenced did not meet the requirements of s.438(1)(b) that ‘the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.’ In this regard, the Tribunal found that the folios [(folios 1-5)] are internal working documents of the Department (being a ‘Case Dump’ of the applicant’s case from the Department’s processing system and an email from one area of the Department to another indicating that the applicant had been security cleared). In relation to the folios referenced in [another file] (folios 1-6, 13 and 68) the Tribunal also found they are internal working documents (being a ‘Case Dump’ of the applicant’s case from the Department’s processing system, a record indicating that the applicant had returned ‘no match’ on checks of his fingerprints and facial image, a copy of a document provided to the Department by the applicant regarding the loss of his passport, and an email from one area of the Department to another indicating that the applicant had been security cleared). The applicant, through his representative, indicated he understood why the Tribunal considered the certificates to be invalid.
The Tribunal advised the applicant regarding the nature of the relevant documents and indicated that the Tribunal drew no adverse inferences from any of the documents (noting that the applicant met the visa requirements and was granted the relevant visas in 2012 and 2014). The Tribunal advised the applicant that the Tribunal considers the relevant folios are not relevant to the consideration of his Protection visa application.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.)
In general the Tribunal found the applicant’s evidence to be vague, inconsistent and unconvincing. For the reasons detailed below the Tribunal did not accept that key elements of the applicant’s account actually occurred.
Assessment of claims
The applicant claims to fear serious and significant harm from [Mr B] and [Mr C], two supporters of the Barelvi sect of Sunni Islam, and the Barelvi community in general because he is a follower of the Deobandi sect of Sunni Islam and insulted their sect, leader and Muhammad. He also claims to fear serious and significant harm because of his political opinion as a supporter of Hanif Abbasi and the PML(N) and because he will be imputed to support extremist Deobandism and because he is a member of a particular social group comprising moderate Deobandis who have spoken out against the Barelvi movement.
Applicant’s background
At the hearing [the applicant] indicated that he and his wife divorced in December 2016. He said that she and their [sons] are living with his former wife’s mother in Rawalpindi. He said that he remains in contact with her and talks with her about their sons’ education. [The applicant] indicated that his parents remain living in their home in Rawalpindi where he also has two uncles. He said he has [brothers].
[The applicant] indicated that Rawalpindi, where he lived with his parents in their home from 2000 until he came to Australia in 2014, is [number] km [from] his home town of [City 1] in the Jhelum district of Pakistan’s Punjab province. He estimated that [City 1] has a population of [number] people.
[The applicant] indicated that he worked [for] a [company] in Rawalpindi from 2001. He said he had made his way up to [senior positions]. He said he was close to being promoted to [a high position] and that he had also been looking after the company’s neighbouring [Branch] for a year before he left Pakistan in August 2014.
Noting the delegate’s findings and relevant country information referenced by the delegate in her decision report (a copy of which was provided to the Tribunal by the applicant); country information provided by the applicant; and advice contained in DFAT’s 2017 Country Information Report, the Tribunal accepts that [the applicant] is a follower of the Deobandi stream of Sunni Islam and that there have been tensions between the Deobandi and Barelvi sects in Pakistan. In this regard the Tribunal notes DFAT’s advice that around 95 per cent of Pakistan’s population (207 million as of the 2017 census[9]) is Muslim and of these approximately 75-80 per cent are Sunni Muslims of whom around 60 per cent adhere to the Barelvi school of thought while around 35 per cent follow the Deobandi school.[10] The Tribunal notes that this means that a very large number of people in Pakistan, approximately 50 million, would be followers of the Deobandi school of thought. DFAT notes that while both Barelvis and Deobandis follow the same basic principles of Islamic thought (the Hanafi school), Deobandis adhere to a more orthodox and conservative interpretation of Islam while a smaller number of Sunnis (around five per cent) follow the Ahl-e-Hadith (Salafi) school. DFAT comments that, according to the International Crisis Group, the majority of Sunni sectarian militant groups in Pakistan follow, or claim to follow, a form of Deobandi or Salafi Islam, including Deobandi groups such as Tehrik-i-Taliban Pakistan (the Pakistani Taliban, or TTP), Jaish-e-Mohammed (JeM) and Lashkar-e Jhangvi (LeJ).
Claimed incident [in] December 2012
[9] ‘6th census findings: 207 million and counting’, The Express Tribune, 25 August 2017, DFAT, Country Information Report, Pakistan, 1 September 2017, sections 3.27-3.32.

The Tribunal asked [the applicant] to tell the Tribunal about the argument he claims he had [in] [City 1]. He indicated he was sitting with two Deobandi friends discussing their political and religious views when they were interrupted by a couple of people sitting nearby with whom they subsequently had a bit of an argument. The Tribunal asked the applicant what he and his friends were discussing at the time. He replied indicating that they were discussing Deobandi and PML(N) matters and talking about their religious leader [Mr A] and his studies. The Tribunal asked the applicant what they were talking about when they were interrupted. He replied that they were discussing the main conflict with the Barelvi group. When pressed, he said they were talking about the Barelvi faith. The Tribunal put to the applicant that in his original statement he wrote that they were discussing the knowledge and studies of their religious leader, [Mr A], when they were interrupted by the two people nearby who ‘started to appreciate their religious leader’ [and] said [Mr A] has no knowledge, resulting in a quarrel staring between the two groups. [The applicant] commented in general terms that the two leaders have hatred for each other and described some of the difference in belief between the two sects. He said [people] came and cooled things and then he went back to Rawalpindi.

The Tribunal asked [the applicant] for more specific details of what occurred, including how the altercation ended. [The applicant] said people controlled them and controlled me. Noting that in his original statement [the applicant] indicated that he and his friends insulted the other party the Tribunal asked whether he was the only person in his group who insulted the other two people. He said all the sensitive conversation was from him. When the inconsistency with his initial statement was put to [the applicant] he replied that he has read what he put in the statement before and what he is saying is actually true. When queried whether he was saying that what is in the statement is not true he indicated that was not the case. When queried further that both things can’t be true he commented that because he was more knowledgeable than his friends, while they also had argued he was the one who had the main conflict with the other party and made the most sensitive comments. The Tribunal finds this account is inconsistent with the applicant’s original statement.

The Tribunal asked [the applicant] who left the [location] first. He said both groups left together. The Tribunal asked him how he got the other party’s names and how they got his name and phone number. [The applicant] replied that it is a small town. The Tribunal queried [the applicant] whether he was saying the groups knew each other. He replied that when people have religious and political views everyone knows who you are. Noting that he had indicated that he was seated with his back to [Mr B] and [Mr C], the Tribunal queried [the applicant] if that was the case why his friends did not warn him they were behind him. He replied that it was normal to talk about politics and religion and that different schools of thought also discussed issues with each other. He said some of these discussions are friendly and some are serious. The applicant also indicated that six years have now passed since this incident and he feels pressured in his head trying to recall it.

Noting that that the applicant had commented in his initial statement that [Mr B] ‘has taken my mobile number’ but had indicated in his subsequent statement that [Mr B] and [Mr C] ‘would have managed to get my number through calling telephone companies or bribing officials for my details’ the Tribunal again queried [the applicant] how they got his mobile phone number. He said his mobile number is on his company’s website and lots of people have his business card. The Tribunal put to the applicant that there seemed to be three different accounts of how they got his number – the first being that he gave it to them; the second being that they called phone companies or bribed officials; and the third being that they looked up his website or had his business card. The representative commented indicating that the use of the term ‘has taken’ his phone number should not be read literally and in the context of the overall paragraph of the statement in which it appears can be read as indicating that [Mr B] obtained [the applicant]’s phone number. While the Tribunal accepts this possible interpretation the Tribunal finds the applicant’s evidence generally in relation to this incident to be vague and inconsistent with his initial statement.

The Tribunal queried the applicant that he indicated in his statement that [Mr B] and [Mr C] told their community what had happened and the community supported them and said he should be brought before them and beaten, and had also expressed concern that he might be falsely charged with blasphemy. The Tribunal asked him why, if [Mr B] and [Mr C] were so offended by what he claims he said, he wasn’t brought before the community, the community did not approach him as a group and no-one has sought to bring blasphemy charges against him. The Tribunal also asked why [Mr B] and [Mr C] would have waited ten months to act further. [The applicant] responded indicating that the Barelvi community have a lot of strength wealth wise and with the police and courts. The Tribunal further queried why, if that is the case, they did not raise a mob to come for him or use the police and courts to have him charged with blasphemy. [The applicant] responded that they were slowly and gradually ‘having hatred’ and indicated that he returned to Rawalpindi. The Tribunal queried why these people would not take action when they were still furious with him. He said he was in constant torture from their calls and text messages saying he had done wrong by insulting their faith, religion and Muhammad.

The Tribunal asked [the applicant] if he reported these threats to the police. He said he did not because he knew police would not do anything. The Tribunal asked why that would be the case if he knew who was sending these messages and could show the messages to police and ask them to warn [Mr B] and [Mr C] to stop threatening him. He said he knew the police would not support him because the police and courts are corrupt. Noting the applicant’s recent claim to be a PML(N) supporter and that PML(N) were in government both nationally and in Punjab province at the time, the Tribunal asked [the applicant] why he could not seek assistance from the party. [The applicant] replied that PML(N) do not want to upset any group because they draw support from a range of religious groups. The Tribunal again queried the applicant why he could not seek assistance from the party to have police warn-off [Mr B] and [Mr C]. [The applicant] replied that they support the same party. [The applicant] also indicated that he did not change his mobile phone number because he had kept the same number for 15 years and it was important for his business.

The Tribunal found vague and unconvincing the applicant’s comments regarding why [Mr B] and [Mr C] did not act against him immediately or shortly after the claimed incident in December 2012 if they were as offended as he claims and had the support of their community as he claims, and why he did not report the claimed constant threats to the police.

Claimed kidnap and assault of wife in October 2013

At the hearing [the applicant] said that after his wife disappeared there were 50 people in his house who were worried all night. He said his wife called the next evening and that more than 20 people, including police, went to collect her. He said his wife had been tortured, assaulted and sexually assaulted. [The applicant] said that initially police did not make an FIR as they thought his wife would come back. When queried why they thought this, he said this is the system in Pakistan. Noting the comments in his most recent statement that when found his wife’s clothes were covered in blood the Tribunal asked [the applicant] what police did when his wife was found. He said a Police Information Report was made but no further action was taken. He indicated that his wife did not want to have a medical examination and pursue the matter because people laugh and make jokes. He commented that he is a private person. He said police pressured them to withdraw the report saying his wife was back home and said he gave them some money and withdrew the report. Noting that he had indicated in his statements that police did not wish to pursue the matter, the Tribunal asked [the applicant] why he had to give police money to withdraw the report. He replied because of police corruption. The Tribunal queried [the applicant] that in his initial statement he wrote that when he told police the complete details police told him they ‘cannot take action’ as his wife had returned home, and made no mention of his wife having been assaulted, while his later statement says he had to pay them to withdraw the case. The applicant replied that the process is that initially an oral complaint is made and once there is an FIR the media and others will come to see what happened. He commented that police seek to make fewer FIRs and that when he made it, they pressured him to withdraw it. He said he was told that if the matter went to court it would take 10 years and he would not get justice. The Tribunal found the applicant’s comments regarding this claimed incident to be vague, confused and inconsistent. His comment that initially police did not produce an FIR is inconsistent with him having provided with his application a copy of an English language translation of an FIR, dated [date] October 2013, reporting his wife’s disappearance. His comment that he is a private person also seems inconsistent with his evidence that 50 people were at his house after his wife disappeared and that 20 people accompanied him when he went to collect her.

The Tribunal also queried the applicant that in his initial statement he wrote that after this claimed incident in October 2013 he applied for a [visa] to Australia, but he did not do this until June 2014 (eight months later). The Tribunal asked [the applicant] why he did not seek visas both for himself and his wife sooner after this incident. He said he applied with his wife for [Country 1] visas and while his was approved her visa was refused as she had not travelled internationally before. When asked why he applied for an Australian visa in June 2014 if this was the case he said he wanted to come to Australia as he had a company travel ticket. While the applicant had not previously mentioned that he and his wife had applied for [Country 1] visas the Tribunal accepts this is possible but also finds that the applicant not seeking an Australian visa until June 2014 suggests that he was not fearful for his safety at this time
The Tribunal asked [the applicant] how he thought [Mr B] and [Mr C] found out he was planning to visit Australia. He suggested it was because his relatives and friends in [City 1] knew. When asked why his relatives and friends would tell [Mr B] and [Mr C] he said he did not know. He commented that it might have been through his [social media] status or social media. The Tribunal also considers that if [the applicant] was a private person as claimed who was concerned about his and his family’s personal safety he would likely have been more guarded about his proposed travel.
Claimed shooting incident [in] August 2014
The Tribunal queried [the applicant] why [Mr B] and [Mr C] would have waited until [August] 2014 to act against him and why, having come all the way to Rawalpindi would not have waited for an opportunity to target him, such as when he was leaving to go to work, or engaged some thugs to harm him. [The applicant] did not address the question but commented that the bullet came close to his chest and nearly took his life. The Tribunal queried the applicant that in his statements he had not indicated that a bullet came close to him. He replied that this was the sense he had when the shots were fired, and that it means that he felt death was near to him.
The Tribunal asked [the applicant] why the police did not arrest [Mr B] and [Mr C] for firing shots in the air and threatening him. He replied that the police always come after the incident. The Tribunal queried [the applicant] that he had indicated that neighbours had heard the shooting and were witnesses and he knew who was responsible and asked why, in those circumstances, police would have been unwilling or unable to take action. [The applicant] said he went to the senior police officer and requested assistance but was told it would be best if he left the country. He indicated that he did not know the name of the senior officer he spoke with.
The Tribunal asked [the applicant] why these people, if they had been wanting to harm him since December 2012, had not acted decisively to do so in the nearly two years he remained in Pakistan until he departed in August 2014. He commented that they have been subjecting him to continuous torture through phone and text messages and the kidnapping of his wife. He added that somehow these things ‘cool down’ but he does not know what they are thinking or planning or waiting for. He said he has told the Tribunal the truth.
Considering [the applicant]’s written and oral evidence cumulatively, the Tribunal does not accept his core claim that he was targeted for serious and significant harm by [Mr B] and [Mr C] and the Barelvi community because he insulted their religion, religious leader and Muhammad. In general this is because the Tribunal does not accept that if these individuals and the broader Barelvi community were offended in the way the applicant claims, and had the capacity to act in the way he claims (essentially above the law or with the assistance of corrupt police and the courts) they would not have done so in the 20 months from when he claims he caused them grave offence in December 2012 until he departed Pakistan in August 2014. The Tribunal finds there is nothing in [the applicant]’s evidence regarding the claimed incident in December 2012, the claimed kidnapping and assault of his wife in October 2013 or the claimed shooting incident at his home in August 2014 that is compelling. The Tribunal finds that much of his account is vague and generalised. The Tribunal considers his evidence regarding what he and his friends were talking about when they were interrupted by [Mr B] and [Mr C] is inconsistent, as is his evidence regarding whether all three member of his group were insulting to [Mr B] and [Mr C] or just him. The Tribunal considers that [the applicant] has not provided a plausible explanation for why, if [Mr B] and [Mr C] were deeply offended by what he said, and reported back to their community and leaders who were also offended and calling for/sanctioning action against him, no action was taken, apart from claimed threat calls and text messages, for 10 months until the claimed kidnapping and assault of his wife. The applicant claims to fear this group because of their capacity to mobilise community sentiment against him, to bring false blasphemy charges against him, and because they have access to wealth and corrupt police and courts, but there is nothing to indicate or suggest that these resources were ever used against the applicant. While the Tribunal accepts that individuals may have been able to identify [the applicant] and find out his address in Rawalpindi and contact details (and notes [the applicant]’s claim that these people could trace him within a week if he returned to Pakistan), these people did not send a mob to [the applicant]’s home or workplace to confront him, or engage thugs to harm or kill him, or seek to bring blasphemy charges against him. The Tribunal also notes that, following his departure from Pakistan, [the applicant] has indicated that, as far as he is aware, his family have not been targeted again. The Tribunal considers it unlikely that, if [the applicant] had escaped overseas in the circumstances he described, that [Mr B] and [Mr C], if motivated to harm him in the way he describes, would not have sought to pressure [the applicant] to return to Pakistan through threats or actions to harm his wife and children in his absence. The Tribunal does not accept, therefore, that a confrontation/altercation of the nature described by the applicant actually occurred.
While the Tribunal accepts that it is possible the applicant’s former wife was kidnapped and sexually assaulted by unknown persons in August 2013, having not accepted that the applicant was in a confrontation/altercation in December 2012, the Tribunal does not accept that, if this did occur, it was perpetrated by [Mr B] and [Mr C] because [the applicant] had insulted and offended them and their religion. The Tribunal also found the applicant’s evidence in relation to this matter to be vague and inconsistent. In his initial statement he wrote that he reported his wife’s disappearance to the police for registration of a case against ‘the above unknown persons’ but indicated that when his wife was released and he told the ‘complete detail’ to the police they said that as his wife had returned they cannot take any action against the ‘said concerned persons’. He subsequently stated, however, that he and his wife didn’t pursue the matter with police because his wife didn’t want the public display of going to court and having her kidnap and assault discussed in the media, due to the shame and humiliation this would bring her. He said they had to pay the police to withdraw the case. The applicant included an English language translation of a claimed FIR dated [date] October 2013 with his Protection visa application. This states, inter alia, that his wife is young and wears gold jewellery and that he ‘doubt that some unknown culprits kidnapped his wife’. While no suspects/accused are identified, under ‘Police action’ it states that a written application has been submitted and a case registered ‘against the accused’. The Tribunal put to the applicant at the hearing advice from DFAT that document fraud in Pakistan is endemic and that DFAT does not consider the existence of an FIR constitutes evidence that the events described in the FIR actually occurred, noting also that there are credible reports of police accepting bribes to verify fraudulent FIRs.[11] While the representative commented that FIRs can be verified with the police, given the limited information in the claimed FIR, which does not identify ‘the accused’ or any suspects, and the DFAT advice that police have accepted bribes to verify fraudulent FIRs, the Tribunal does not see any value in seeking to verify the genuineness of the document. Considering all the evidence cumulatively the Tribunal does not accept that [the applicant]’s wife was kidnapped and sexually assaulted by [Mr B] and [Mr C] as part of a vendetta against the applicant.
[11] DFAT Country Information Report, Pakistan, 1 September 2017, sections 5.43-5.45.
The Tribunal therefore also does not accept that [Mr B] and [Mr C] came to [the applicant]’s home ten months later, after hearing that he was planning to come to Australia, and fired shots into the air when he would not open the door in response to their knocking, ringing the doorbell and calling to him. In addition to the comments above, the Tribunal finds it implausible that if [Mr B] and [Mr C] really were determined to harm or kill [the applicant], they would have simply come to his front door rather than monitoring his movements and confronting him in the street or another setting where he was vulnerable, or arranging for thugs to kidnap him, or mobilising their community to take group action or legal action against him, including through use of Pakistan’s blasphemy laws as the applicant claims he feared. The Tribunal also found it difficult to believe that a senior police officer, whose name the applicant cannot recall, would tell the applicant that he should leave the country, and that the applicant would do so, leaving his wife, who he claims had been kidnapped and sexually assaulted by these people, and [young] sons behind where, if his claims were true, they would be vulnerable to kidnap and further harm by these people.
The Tribunal has considered [the applicant]’s comments that he had a good life in Pakistan and had no reason to leave Pakistan apart from his fear of harm from [Mr B] and [Mr C] and the Barelvi community, but finds that it cannot know his individual circumstances apart from what he has chosen to reveal to the Department and the Tribunal and therefore cannot know what his motivation was for leaving Pakistan. Based on the Tribunal’s assessment above, the Tribunal is satisfied that [the applicant] has not suffered persecution amounting to serious harm and is satisfied he does not face a real chance of suffering persecution amounting to serious harm from the Barelvi community, including [Mr B] and [Mr C], their leaders, followers and associates because he is a follower of the Deobandi sect and because he insulted [Mr B] and [Mr C], their religious leader, religion and Muhammad.
Claims to face harm due to political activities.
The Tribunal asked [the applicant] about his political activities, commenting that he had been out of the country since August 2014 so would not have been campaigning for PML(N) in the last election, and why he had not raised these issues previously. [The applicant] said he has been commenting on social media about ISI and they can pick people up, kidnap them and torture them. He indicated he had not mentioned anything about PML(N) or ISI previously because he had gained freedom to talk about ISI since he had been in Australia. He said he assumes ISI have his name and everything he has said. He indicated that has shared views that would be seen as anti-establishment and anti-military because he has commented on the role of ISI in religious and political affairs in the country. He said the discrimination against and treatment of Sharif Nawaz upset him because he really loved him. The Tribunal put to the applicant that Sharif Nawaz was arrested and imprisoned for corruption following revelations in the Panama papers. The applicant acknowledged this was the case but commented that journalists in Pakistan are not free to mention or print stories critical of ISI or the military establishment. The applicant said he is not just a supporter of PML(N) but is a supporter of democracy which is threatened by the military and ISI and he has become a voice of opposition to ISI.
The Tribunal asked the applicant why his assets have been frozen. He indicated that because he came to Australia in nine days he cannot withdraw money or deal with his property. The Tribunal asked the applicant why he could not deal with his bank via the phone and/or internet and seek the assistance of his parents/family members in Pakistan to access his assets. He said he has to go to the Pakistani High Commission in Canberra to arrange for his father to have power of Attorney over his affairs. He indicated that he had not yet done this.
The Tribunal finds the applicant’s more recent claims regarding his political activities to be similarly vague and unconvincing. As put to the applicant at the hearing, the PML(N), while having been defeated both nationally and in the Punjab province assembly elections in July 2018, remains a significant political force in Pakistan, and is the main opposition party both nationally and in the Punjab Assembly (winning 82 to PTI’s 149 seats in the 342 seat National Assembly and 127 to PTI’s 122 seats in the 294 seat Punjab Assembly)[12]. The Tribunal does not accept that there is anything to indicate or suggest that the applicant being a supporter of the PML(N) or Hanif Abbasi or Sharif Nawaz puts him at a real chance of serious harm. As put to the applicant he has also been outside Pakistan since August 2014 so was not campaigning for Hanif Abbasi or the PML(N) generally at the 2018 elections. Noting [the applicant] did not indicate why he has not gone to the Pakistan High Commission in the over four years since he has been in Australia to arrange power of attorney for his father over his assets in Pakistan the Tribunal does not accept that the applicant’s assets being frozen, if this is the case, indicates that he has suffered or faces a real chance/risk of suffering serious or significant harm for a political or religious reason.
[12] Election Commission of Pakistan, >
The Tribunal notes that [the applicant] has not provided any examples of any comments he has made to support his claims to have made comments on social media critical of the role of ISI and the Pakistani military in Pakistani politics and championing democracy. While the Tribunal accepts that [the applicant] may have made some such comments the Tribunal does not accept his ‘assumption’ that, as a consequence, he is of adverse interest to ISI or that ISI have his name and everything he has written. While the Tribunal accepts that ISI and the Pakistani military play a significant role in Pakistani affairs, and that Pakistan has had extended periods of military rule, the Tribunal notes that the 2018 elections marked a second successive democratic transition from one elected government to another. DFAT also comments that journalists in Pakistan are typically free to report on most issues of interest and media outlets regularly publish criticism of governments, politicians, political parties, the judiciary and the security forces. While DFAT comments that it understands that journalists regularly undertake self-censorship when dealing with sensitive issue, particularly issues involving the military and national security, and also comments that in April 2014 journalist Hamid Mir was shot six times in an attack he blamed on ISI because he had written critically of the Pakistani military and the Directorate-General of ISI and alleged human-rights abuses in Balochistan, the Tribunal finds that the applicant has not advanced any information to indicate or suggest that he has the profile or followers of a journalist or political commentator such as Hamid Mir, or has posted anything of such a sensitive nature, or so widely, or that has attracted broader public attention that it might bring him to the adverse attention of ISI or the Pakistani military such that they would seek to detain, kidnap, torture or kill [the applicant] on his return to Pakistan. Accordingly the Tribunal does not accept that there is a real chance that the applicant would face serious harm from ISI or the Pakistan military should he return to Pakistan now or in the foreseeable future.
In relation to the claim advanced by [the applicant]’s representative that he may be at risk of harm because he has acquired an imputed political opinion as someone who ascribes to extremist Deobandism, having regards to the findings of facts above, the Tribunal finds that there is nothing in the applicant’s evidence to indicate or suggest this is or might be the case.
In relation to the claim that the applicant is at risk of harm because he is a member of a particular social group comprising moderate Deobandis who have spoken out against the Barelvi movement, having regard to the Tribunal’s findings of fact above, the Tribunal finds there is nothing in the applicant’s evidence to indicate or suggest this is or might be the case. As discussed with the applicant (and noted above), DFAT advice indicates that around 35 per cent of Sunni Muslims in Pakistan follow the Deobandi school of thought (amounting to around 50 million followers). While the Tribunal accepts that there are tensions between the two sects relating to their respective interpretations of Islam, the Tribunal considers there is nothing in the applicant’s evidence to indicate or suggest that he is or might be perceived as a moderate Deobandi who has spoken out against the Barelvi movement and is or would be at real risk of serious or significant harm as a consequence.
Accordingly, having considered the applicant’s claims individually and cumulatively as well as relevant country information, the Tribunal finds there is not a real chance that the applicant will suffer persecution amounting to serious harm from the Barelvi community, including [Mr B] and [Mr C], their leaders, followers and associates, including corrupt police and courts because he is a follower of the Deobandi sect who has offended the Barelvi sect or because he may be imputed to adhere to extremist Deobandi views; or from ISI, the Pakistani military or the current PTI government led by Imran Khan because of his support for PML(N) and his anti-ISI, anti-military and pro-democracy views, or for any other Convention reason, should he return to Pakistan, now or in the foreseeable future.
As the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm from the Barelvi community, including [Mr B] and [Mr C], their leaders, followers and associates; or from ISI, the Pakistani military or the current PTI government led by Imran Khan or anyone else should he return to Pakistan, the Tribunal finds that the applicant does not require the protection of the Pakistani authorities.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.

In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13]
[13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to Pakistan other than for the reasons discussed above relating to his claims under the refugee criterion. It is submitted by his representative that that [the applicant] will be arbitrarily deprived of his life if forced to return to Pakistan. The representative states that the ongoing religious and political violence in Pakistan is such that it is a tenuous situation for all groups in Pakistan and [the applicant] would not be able to protect himself wherever he was in Pakistan and would not be able to voice his religious and political opinions with any certainty that he would not be killed by somebody who disagrees with him. Given the Tribunal does not accept that [the applicant] has suffered serious harm in the past due to his religious and political beliefs and activities and does not accept that he faces a real chance of suffering persecution amounting to serious harm in the reasonably foreseeable future if he returns to Pakistan, the Tribunal, having regard to the findings of fact set out above, [the applicant]’s claims individually and cumulatively, DFAT advice regarding the very large size of the Deobandi community in Pakistan and the information indicating that PML(N) remains a significant player on the Pakistani political landscape, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that [the applicant] would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment, by members of the Barelvi community, their leaders, supporters and associates, the ISI, Pakistani military or current PTI government figures and authorities or anyone else, should he be returned to Pakistan.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor

Member

‘Pakistan election: Party of Ex-PM Nawaz Sharif concedes to Imran Khan’, BBC News, 27 July 2018, results 2018: Latest party positions in Punjab, Sindh, KP, Balochistan assemblies’, The News, 27 July 2018,

Key Legal Topics

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Immigration
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Judicial Review
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Citations

1616309 (Refugee) [2018] AATA 5063

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179

[2018] AATA 5063

10 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction