1617127 (Refugee)

1617127 (Refugee) [2019] AATA 5748 (23 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617127
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:23 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 December 2019 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – non-Convention claim – threat of individual criminal revenge – Tehrik-e-Nifaz Fiqah-e-Jafria (TNFJ) – Tehrik-e-Jafaria Pakistan (TJP) – claimed witness to Ashura Day incident in 2013 – Jamia Taleemul Quran mosque and madrassa – credibility concerns – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 on 20 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant], is a Sunni Muslim citizen of Pakistan from the city of Rawalpindi near Islamabad.
He last entered Australia on a tourist visa [in] June 2015. He lodged a protection visa application on 5 August 2015. The delegate refused to grant the visa on 20 September 2016, relying on [the applicant] being able to relocate safely, reasonably and practicably to Karachi or another part of Pakistan. [The applicant] subsequently sought merits review by this Tribunal.
[The applicant] appeared unrepresented before the Tribunal on 17 December 2019 to give oral evidence and present arguments. The Tribunal hearing was facilitated by an interpreter in the English-Urdu medium.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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 Immigration – 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the former Immigration Department
In his original protection visa application, [the applicant], a Sunni, claimed to have grown up as close friends with a Shi’a Muslim called [Mr A] who quite suddenly turned, as an adult, into a Shi’a activist.
[The applicant] claimed that on 15 November 2013, being the tenth day of the month of Moharam and the occasion of the Shi’a mourning festival of Ashura, he witnessed the now notorious outbreak of violence that occurred at the Jamia Taleemul Quran mosque and madrassa (Islamic college), a mosque and madrassa following the Deobandi stream of Sunni Islam, in Rawalpindi’s Raja Bazaar district.
According to [the applicant], he was on his way to that same mosque to offer Friday prayer when a procession of Shi’a Muslims blocked the adjacent roads. He said that members of the procession then emerged with automatic weapons and other guns and took positions to attack the Jamia Taleemul Quran mosque and madrassa. He said this group of Shi’a militants was soon followed into the area by another group armed with sticks and steel rods. He said he then saw his lifelong friend [Mr A] atop a wall shouting instructions to the procession, now several mobs, to attack the mosque. He said the Shi’a gunmen then invaded the mosque and opened fire inside.
According to [the applicant] in the statement he attached to his protection visa application form, he saw the Shi’a militants “cut the throats of many young [men] and children” and later came to know that many people were killed in all the gunfire. He said that whereas the Pakistani media reported twelve deaths, he himself saw thirty funerals soon after the Ashura Day violence of 15 November 2013.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision record which includes a summary of evidence and issues discussed at the protection visa interview held on 18 November 2015. The delegate did not accept that [the applicant]’s description of having seen young people including children with their throats cut, due to this detail being at odds with an abundance of independent reporting including eyewitness records of the Ashura Day dispute. The delegate nevertheless concluded that [the applicant] was a credible witness because, in the delegate’s view, his oral description of other aspects of the Ashura Day clash appeared consistent with his earlier written claims as well as with independent reports of the event generally. At the Tribunal hearing, I undertook a fresh and detailed review of [the applicant]’s claims about Ashura Day 2013. I also raised the delegate’s concerns about the claimed cutting of youths’ throats because this particular claim is indeed not supported in any of the abundant reporting of the event. (See below.)
[The applicant] claimed to the Department that he ran back to his aunt’s house where he had been delivering “traditional food” earlier in the day. He said he stayed there for three days during which there was imposed by the authorities, to the best of his memory, a three-day curfew. Independent reports indicate that the curfew imposed on late Friday night 15 November/early Saturday 16 November 2013 was lifted in the early hours of Monday 18 November 2013[1], and refer to it as a two-day curfew[2], but it seems reasonable to describe it as a three-day curfew.
[1] “Pakistani government ends curfew imposed after sectarian clash killed 8 Sunni Muslims,” Fox News sourcing Associated Press, 18 November 2013,
[2] “Curfew in Pakistan's Rawalpindi lifted after two days,” First post, 18 November 2013,
[The applicant] claimed he later spoke to a friend in the police force called [Mr B] of [Mr A]’s role in killing many of the people at the mosque. He claimed he made a formal statement to the police. He claimed [Mr A] soon learned of his having reported to the police and telephoned him, threatening to have him killed in the name of the Shi’a community. He claimed the police asked him if he knew where [Mr A] was located. He claimed he offered to try to find out. He claimed that at this time he already knew [Mr A] was staying at his sister’s place but did not want to disclose his location to the police when they asked him because, as he put it his statement, he “wanted to protect” [Mr A]. He claimed that his friend [Mr B] and other senior police promised not to mistreat [Mr A] and also offered to provide security for him, [the applicant], if anything went wrong. He said that after the police gave these assurances, he led them personally to the home of [Mr A]’s sister where [Mr A] was arrested.
It is my impression that, during the Tribunal hearing, [the applicant] embellished the evidence summarised in the preceding paragraph. (See below.)
[The applicant] claimed to the Department that after [Mr A] was arrested, various Shi’a telephoned him and threatened him. He claimed these people were [Mr A]’s fellow members in the Tehrik-e-Nifaz Fiqah-e-Jafria (TNFJ). He has generally described the TNFJ as a militant Shi’a group using violence and intimidation to advance Shi’a interests in Pakistan. Independent country information describes the TNFJ as more of a religious debating group, unlike the TJP which broke away from it in the 1980s:
Tehrik-e-Nifaz-e-Fiqh-e-Jafaria (TNFJ) was formed in 1979 and was initially under the leadership of Allama Jaffer Hussein. When Allama Jaffer Hussein died in 1983, the TNFJ split into two factions; a more religiously inclined faction led by Agha Syed Hamid Ali Shah Moosavi, and a more politically inclined faction led by Arif Al Husseini. The politically inclined faction of Husseini eventually received the backing of Ayatolla Khomeini in Iran, and took precedence, changing its name to Tehrik-e-Jafaria Pakistan (TJP) in the late 1980s.
TNFJ later split into two groups with the second group (Tehrik-e-Jafaria Pakistan) headed by Allama Arif Hussaini, who was assassinated in 1988 during Gen Zia ul-Haq's regime. After Al Husseini was assassinated in 1988, Allama Sajid Naqvi became the leader of this group, and was reported to continue in this role, as at January 2011.
TJP was banned two times by President Pervez Musharraf's government and its leaders were arrested. However, they continued to operate under new names. One of five extremist groups banned by President Musharraf in January 2002. Musharraf banned six extremist Islamic groups under the 1997 Anti-Terrorist Act in November 2003. Three groups were banned who had flouted an earlier prohibition order by changing their names. These were the Shia group Islami Tehrik-I-Pakistan (formerly Tehrik-I-Jafria Pakistan) and the Sunni groups Millat-I-islamia Pakistan (formerly Sipah-I-Sahaba Pakistan –SSP) and Khudam-ul-Islam (formerly Jaish-e-Mohammed-JEM) Jamaatud-Dawa (thought to be a new identity for the Kashmiri armed separatist group Lashkar-I-Toiba)
The TJP has been banned twice, but continues to operate under different names. Its members claim that the organization is essentially a Shia resistance to Sunni extremism, but TJP has also been involved in sectarian violence.
[T]he various Shi’a sectarian groups currently operating in Pakistan have a complex history, with factional splits in organisations, and the formation of militant factions creating a range of different actors. The names under which different Shi’a groups have operated have varied over time, in response to factional splits and government [bans]. It is in this context that there is a degree of variance and inconsistency in the titles by which the Tehrik-e-Nifaz-e-Fiqh-e-Jafaria (TNFJ) and the Tehrik-e-Jafaria Pakistan (TJP) are referred to in news media, and political discourse; names tend to be used interchangeably.[3]
[3] “Tehrik-e-Jafria Pakistan (TJP) Tehrik-e-Nifaz-e-Fiqh-e-Jafaria (TNFJ)
The relevance of the foregoing information is that [the applicant] might be one of those people who, whilst referring to the TNFJ, may in fact be referring (interchangeably) to the TJP.
[The applicant] claimed he reported these TNFJ or TJP threats to [Mr B] who told him not to worry as measures were in train to protect him. [The applicant] then claimed that [Mr A] was released from police custody in June 2014 “because his group [was] very resourceful and [knew a] few senior people in [the] police.” At the Tribunal hearing he gave quite different evidence about the circumstances of [Mr A]’s release in June 2014. (See below.)
[The applicant] claimed that [in] June 2014, he and a friend [Mr C] were attacked on the motorcycle they were riding by two other motorcyclists who struck him twice and brought him off his motorcycle. He claimed he and [Mr C] were hospitalised. He presented the Department with a photocopy of a purported medical report evidently dated [June] 2014. However, the medical report cites “Physically Assault [sic]”, a finding one would reasonably expect to be outside the competence of a professional conducting an examination of a patient’s condition, before it proceeds to detail his medical symptoms. Seemingly oddly, this medical file describes both patients and their different individual injuries in the one form, but, further on, does not appear to distinguish which patient received which of the listed tests and treatments. It further states that [the applicant]’s “bruising was due to falling from [a] motor bike”, again seemingly outside of medical competence, and, similarly, that “his body was also showing signs of some stick hits the back bone.” As a medical report, it appears substantially unhelpful in stating, for the benefit of professionals in any later examinations or consultations, who received what attention and where they received it, and who received what medications.
[The applicant] claimed that while he was I hospital he received a telephone call directly from [Mr A] who indicated he was responsible for the motorcycle attack, saying he intended to kill him “not … straightaway but slowly.” He said he called policeman [Mr B] for help and was placed by the police, at [Mr B]’s request in a safe house in [Mr B]’s village about 100km from Rawalpindi. He did not suggest that in his statement to the Department that this period of protection away from Rawalpindi ever ended until he left Pakistan.
[The applicant] claimed his own business ran into losses without him there to run it and had to be closed. He claimed he had no choice then but to leave Pakistan. He said his first attempt to apply for a visa for Australia was refused, and this claim is supported by information included in the primary decision record, which also notes that his brother in Australia, who sponsored his visitor visa application, sought review of the Department’s refusal in the former MRT and that the Department’s refusal was set aside.
[The applicant] claimed in his protection visa application that his brother knew nothing of his problems in Pakistan. He claimed he withheld all information about his problems from his sponsoring brother lest the latter refuse to help him. He claimed that after he arrived in Australia and told his brother about what had happened and about his need to seek protection, his brother refused to help him for fear of acquiring a bad record with the Department. He said it took a while for him “to contact lawyers for advice.”
[The applicant] also submitted some other documents to the Department:
·a photocopy of his national ID card;
·a photocopy of a document certifying the allotment of his shop in Rawalpindi;
·a purportedly certified document in Urdu (with English translation) dated 15 November 2013 purporting to be a “First Information Report” to police of offences committed “at 1:15p.m.” or 1:15 in the daytime, during the Ashura Day conflict; referring to a cleric in the mosque broadcasting a speech offending the Shi’a procession participants, followed by shouting, followed by mosque adherents throwing stones at the procession, followed by an exchange of stone-throwing; and naming [Mr A] (highlighted in the English translation, though without an Urdu original with which to compare it) as one of 80 wanted offenders;
·a purported 1 April 2014 remand notice pertaining to [Mr A], accusing him of involvement in the 15 November 2013 violence, referring to him as a member of a “sect” that is not named in the notice, and describing him as a threat to society and public safety, but ordering he be held in custody for only 15 days;
·an undated letter [the applicant] purportedly wrote to “The City Police Officer” asserting that he provided police with the whereabouts of [Mr A], as a consequence suffering an attack [in] June 2014 by members of the “Fiqa Jefferies movement” (probably an attempt by the translator to refer to the Tehrik-e-Nifaz Fiqah-e-Jafria), and asking for immediate protection, the letter purportedly with a handwritten annotation at the bottom, by a “City Police Officer”, with the words” Do the needful for the protection of applicant as per rules”.
According to the delegate’s decision record, the delegate inferred that [Mr A] remained in prison as at the time of the primary decision. [The applicant] described this as an error on the delegate’s part in a pre-hearing submission to the Tribunal. (See below.)
According to the primary decision record, and also according to the evidence he provided to me at the Tribunal hearing, [the applicant] described the outbreak of violence at the Jamia Taleemul Quran mosque and madrassa as the operational fruition of a pre-meditated, organised and secretly pre-armed TNFJ plot: one that the police providing security for the Ashura mourners’ procession failed completely to detect before it was already too late.
Specifically, [the applicant] claims that two specific groups of mourners secreted weapons about themselves until they reached the mosque and madrassa and then they opened fire on the mosque and those within it, scaring the police away. At this point it is appropriate to discuss independent reporting of the event.
Independent country information

The following summary of events[4] appeared in The Friday Times on 22 November 2013:
Darul Uloom Taleemul Quran, located in the middle of Raja Bazaar, is considered an epicenter of anti-Shia diatribes. But the seminary has always rejected such allegations. Instead, it blames the local Shia community of spreading sectarian hatred…
As Moharram [2013] began, the local administration imposed Section 144 in the city, banning the use of loudspeakers. Officials had assured the Shia community that the Friday prayers at Darul Uloom Taleemul Quran and other mosques would conclude by 2pm. The seminary is situated on the main route of the Moharram procession, which was scheduled to pass by at 3pm.
Two things went wrong that day. First, the administration failed to silence the loudspeakers of the seminary, where a cleric was allegedly delivering an offensive speech. Second, the procession reached outside the mosque ahead of schedule.
The Shia mourners complained to the police about the offensive sermon. Before they could act, the two groups were throwing stones at each other.
There are conflicting reports on who burnt the mosque and the adjacent Madina Cloth Market. The people inside allege that the mourners set the mosque and the market on fire. The mourners say the fire erupted from inside the building …
The military was called in. The Triple-One Brigade – known for toppling civilian governments in the past – took charge and imposed curfew in the city.
[4] “What went wrong in Rawalpindi,” The Daily Times, 22 November 2019,
The following is extracted from a Shi’a eyewitness account[5] of the incident:
[5] “An eye-witness account of Ashura day riots in Rawalpindi – by Blair Sajed,” LUBP, 16 November 2013,
According to the eye-witness, the mullah of the mosque in his Friday sermon denigerated [sic] [Shi’a] Imam Hussain and glorified Yazid.
(Deobanid) Mullah of the Masjid Talimul Quran said Imam Hussain (Nauzobillah) wanted to take oath of allegiance of Yazid, but his son Imam Zainul Abideen (AS) stopped him (nauzobillah) causing mischief.
Mullah’s inflammatory speech agitated the mourners in procession. The (Deobandi) Mullah then gave ultimatum of 3.00 pm to clear the road in front of the mosque and started prayers
The mullah restarted his provocative speech after completing the prayers and repeated what he had been saying earlier
Agitated (Shia and Sunni) mourners finding it difficult to bear the (Deobandi) mullah started shaking the grills outside the mosque in protest against the comments
In meantime someone from inside mosque 1st hurled a stone at mourners shaking the grills. The stone was followed by firing from mosque rooftop.
Firing caused panic and people started running. Some people present among the mourners snatched guns fr[o]m police and fired back at the mosque
When a senior police officer accompanied with police commandoes came to the mosque, they too were attacked fr[o]m the mosque coming back to my own analysis. To start with Mullah was resp[onsible] for the situation by making such a provocative speech. Second culprit is [the] admin[istration] (Punjab government). The admin[istration] failed to stop the Mullah from delivering the speech that would have hurt others feelings and allowed [the] situ[ation] to aggravate
Two important things to note are the invitation to followers to reach Talimul Quran ostensibly to confront mourners and the 3pm ultimatum by the mullah.
The chronology narrated by eyewitness fits in with [the] sequence of the events and the [videos] available on social media corroborate wh[a]t he said.
Holding Shias resp for Pindi attack is illogical because their interest is that processions remain peaceful. Mullah’s provocation led to riots.
The following report in Pakistan’s Dawn indicates that both the TNFJ and TJP were quick to condemn and distance themselves from the violence of 12 November 2013:
RAWALPINDI: A curfew was imposed in Rawalpindi on Friday after eight people were killed and a market was burnt in a clash between two groups in relation to the harassment of an Ashura procession in Rawalpindi's Raja Bazar area, DawnNews reported.
The curfew was imposed in the city keeping in view the tense situation, a spokesman for the Punjab government was quoted by TV news channels as saying.
Authorities also decided that mobile phone services would remain suspended in the city until Sunday.
The Jaffria Alliance condemned the violence in Rawalpindi and demanded from the provincial government to bring to justice those who had resorted to gunfire. [6]
[6] “Curfew imposed in Rawalpindi as violence claims eight lives,” Dawn, 15 November 2013,
Whereas [the applicant] claims to have seen members of the Shi’a procession, or militants embedded within that procession, being the first to open fire, independent sources report the opposite:
Eight people were killed when gunmen opened fire on a Shia Muslim religious procession in Pakistan, hospital officials said, in what appeared to be the latest incident of spiralling sectarian violence.
More than 30 others were wounded in the attack on Friday, which began when the procession passed a Sunni seminary.
Rock throwing quickly degenerated into gunfire, said staff at the district headquarters hospital in the city of Rawalpindi.
The clashes began when mourners dragged several people out of a seminary after hearing them shout insults at the procession as it passed by, police officer Afzal Hussain told the AFP news agency. They then killed them, he said.
They also set dozens of shops outside the seminary on fire, he said.
Police tried to stop the clash, but officers were wounded as the two sides threw stones at each other, Hussain said.
An army unit based in Rawalpindi eventually reached the scene and took control. A curfew has now been imposed in the city, provincial officials said.
The Shia Muslims were marking Ashura, an annual Shia day of mourning to mark the death of Imam Hussein, a grandson of the Prophet Mohammad.
Many join long processions where they flagellate, beat or cut themselves to show their grief.
Rawalpindi is a few minutes' drive from the capital, Islamabad, and home to the headquarters of Pakistan's army.
Further details of the attack were difficult to ascertain since the government suspended mobile phone services in much of Pakistan during Ashura, in a bid to try and foil suicide bombers, who have attacked such gatherings in the past and regularly threaten Pakistan's Shia population.
Attacks on Pakistan's Shia, who make up about a fifth of the 180 million population, have worsened in recent years.
Most of the attacks are the work of Sunni Muslim fighters, many of whom are affiliated with banned groups such as the Taliban or Lashkar-e-Jhangvi, which wants to drive all Shia Muslims out of Pakistan.
Hundreds of Shia Muslims were killed in bombings and other attacks last year, including children gunned down on their way to school and doctors heading for work.[7]
[7] “Deadly attack on Shia procession in Pakistan,” AlJazeera, 16 November 2013,
According to the following study, the belief that numbers of Sunni worshippers’ throats were cut appear to originate purely out of a rumour propagated in the wake of the 15 November 2013 incident:
On Friday 15 November 2013, the Shias of Rawalpindi held the yearly Ashura procession. When the mourners were near the Taleem ur Koran, a Deobandi mosque-cum-seminary, its imam began the Friday sermon by denouncing Hussain bin Ali and praising Yazid. He also called Shias “kafirs”. It should be noted that on the 10^th of Moharram, all mosques are legally bound not to use loudspeakers or make provocative speeches; only the regular daily call to prayer, the azzan, is allowed to be recited.
The Shia mourners began to shout slogans against Tazid. At this point, shot were fired from the mosque, resulting in the killing of eight Shias on the spot (see below for details). As a result, some of the Shia mourners set the mosque on fire. Since the fire was immediately extinguished, the front of the mosque was burnt but nothing was damaged inside. However, the media reported this incident from the Deobandi point of view…
Had the inside of the mosque been burned down, the Deobandis would have shown some burnt copies of the Koran as evidence. They did not. The Deobandi leaders also claimed that Shias slit the throats of 12 seminary students. The media reported that the bodies of the slain seminary students had been taken to their home villages. Only the following day at a press conference did the chief of the Rawalpindi clarify that not a single seminary student had been killed (see below for details). However, the media continued to conceal facts …
One day before the Rawalpindi incident, the ASJW called upon its activists to gather in the Taleem ur Koran mosque and stop the Shia protest.[8]
[8] Faith-Based Violence and Deobandi Militancy in Pakistan, edited by Jawad Syed, Edwina Pio, Tahir Kamran, Abbas Zaidi, Springer Books, 2016
It appears that a fire did start inside of the mosque and madrassa, as photographs in articles cited above show the interior burnt out and levelled. However, state investigations appear to have found that the culprits precipitating and stoking the violence and destruction on that day were Pakistani Taliban (TTP) provocateurs:
ISLAMABAD: The army on Monday claimed to have finally solved the mystery surrounding the 2013 Ashura Day violence that claimed the lives of at least nine people in Rawalpindi.
According to Maj Gen Asif Ghafoor, the head of Inter-Services Public Relations (ISPR), the attack carried out by the Tehreek-i-Taliban Pakistan (TTP) was an attempt to rupture “sectarian fault-lines” and had been linked to Indian and Afghan intelligence activities in the country.
“In 2013, a Sunni Mosque was attacked in Rawalpindi and it was claimed that a Shia organisation was to blame. Intelligence agencies investigated the incident, tracing and busting the network involved,” Maj Gen Ghafoor said.
He revealed that both the mosque and the terrorists who attacked and set fire to it, belonged to the same sect.
“They pretended to be [from another sect] and donned black clothes to create sectarian fault-lines,” he said, adding that the attack had subsequently sparked more sectarian clashes in the country.
The Madressah Taleemul Quran was at the epicentre of the violence that paralysed Rawalpindi on Nov 15, 2013.
While the circumstances surrounding the incident are still disputed, it was claimed that offensive remarks were passed by a cleric belonging to the mosque, which led to clashes and rioting.
As the situation spiralled out of control, a curfew was imposed and the military was called in to quell the unrest in the garrison city.
At Monday’s press briefing, the ISPR chief also played video clips featuring the confessions of two of the eight attackers.
“We were told to wear black clothes on Muharram 10 and carry out the attack on the madressah in Raja Bazaar to cause a Shia-Sunni clash,” said TTP commander Shazaib, who claimed to be leading the mission. He said he belonged to Bajaur and that there were eight people in his group.
Detailing the events of the day, he said that his gang reached the madressah around the time of the Friday congregation. They split up when they entered the seminary, with half the men heading to the upper storey and half staying on the ground floor.
Shahzaib claimed he was guarding the seminary gate and stabbed a couple of worshippers.
Then, he said, he bought oil and set the seminary on fire.
At the time, he said, the Muharrum procession was near Fawara Chowk (half a kilometre from the seminary). When gunfire broke out, he said, the men escaped and reassembled at Chuhr Chowk, a few kilometres from the seminary. Shahzaib then returned to Bajaur 15-20 days later.
Ajmal Khan, another terrorist who claimed he was affiliated with TTP Bajaur, said that the operation was controlled by a commander based in Afghanistan, while Shahzaib was leading the mission on the ground. During the attack, he claimed he was armed with a pistol and positioned himself on the first floor of the seminary.
After the video played, the ISPR chief explained that these confessions revealed how an attempt was made to create “sectarian fault-lines”.
“It was linked to NDS, RAW and the Kulbhushan Jhadav network,” he added.
He said the matter was being probed and it was up to the government to decide if it wanted to prosecute the case in a military court or a civilian one.
The ISPR chief parried a question about the fate of the cases against Shias who were booked after the incident. Most of them are currently on bail.[9]
Rawalpindi, Pakistan: Taleemul Quran Madrassa Raja Bazar Rawalpindi also known as Jamia Taleem ul Quran Rawalpindi was burnt down by terrorists belonging to Tehrik-e-Taliban Pakistan (TTP) not by Shias as believed earlier.
Director General Inter Service Public Relations (ISPR) of Pakistan Armed forces while briefing journalists on Monday said that Inter Service Intelligence (ISI) busted the network of terrorist who were sent to Rawalpindi for burning Sunni mosque and Madrassa of Taleemul Quran Raja Bazar for creating sectarian divide in the country. He played confessional statements of two TTP terrorists who explained how did they burnt down Taleemul Quran Madrassa Raja Bazar Rawalpindi on November 15, 2013 and then entered procession of Shias.
DG ISPR Maj Gen. Asif Ghafoor explained that all eight terrorists belonged to same school of thought the mosque belonged to and this act of terrorism was conducted to create sectarian divide in Pakistan and planning was done by TTP leadership living in Kunar province of Afghanistan.
In his confessional statement commander of the Taleemul Quran Madrassa Raja Bazar Rawalpindi operation terrorist Shahzaib said that they were eight persons hailing from Bajur Agency including Abdul Rasheed, Baskhiullah, Anayatul Rehman, Jamal, Abdul Razak, lavang, Ajmal Khan and Sultan Zaib Shina. He said that they were sent to Rawalpindi for conducting terror act during the month of Muharram to create sectarian clashes in Pakistan. He said that they belonged to same sect and school of thought of which Taleemul Quran Madrassa Raja Bazar Rawalpindi belonged to. He added that they gathered at the resident of Abdul Razak in Rawalpindi and planned the terror attack. He stated that it was Friday and they entered Taleemul Quran Madrassa before Juma prayer when procession of Shais was proceeding towards Taleemul Quran Madrassa. He stated that he slaughtered two persons inside Taleemul Quran Madrassa near main gate while two of his companions went to first storey of the mosque and burnt the place with petrol they brought with them while his other companions were busy in killing people with pistols.
Terrorist Ajmal Khan in his confessional statement stated that they (terrorists) got instructions from TTP Commander Said Gull who lived in Kunar province of Afghanistan.
Both terrorists said that after killing people and burning down the mosque, they joined procession of Shias that was already at the gate of the mosque.
They said that [they] spent next 15 days in Rawalpindi and then left for Bajur Agency.[10]
[9] 2013 Ashura violence was staged by TTP: ISPR chief, Dawn, 22 August 2917,
[10] “Jamia Taleem ul Quran Rawalpindi was burnt down by TTP terrorists, reveals DG ISPR,” Dispatch News Desk, 21 August 2017,
Three days after the violence, the death toll was reported as being “at least nine”[11]. Three years after the event, the death toll remained at eight[12]. Suggestions that the death toll ran to twelve are less easy to confirm.
[11] “Curfew lifted in Rawalpindi,” Dawn, 18 November 2013,
[12] Raja Bazaar tragedy: Taleemul Quran madrassa reopens after three years,” The Express Tribune, 30 September 2016,
It is apparent from a fair reading of the articles cited above that some of them may disclose sectarian bias, one way or another, on the part of their respective authors. It appears that, in any event, for want of access to potential witnesses during the curfew, early press reporting was to some extent reliant on mobile telephone footage, arguably biased social media and Internet forum postings (such as the pro-Sunni Defence Pakistan Forum[13]). I have been cautious not to treat any of the above reports as being totally authoritative on its own. The essay cited at paragraph 36 above rebuts a number of allegations that were also refuted over time in other independent reporting, and yet it does in some respects read like a pro-Shi’a repudiation of some of the contemporaneous anti-Shi’a “reporting” in circulation.
[13]
[The applicant]’s account of the episode to the Department included references to facts that, as the delegate observed, may not have been reliable, such as with the claims about mass throat-slitting. However, I did find one “eyewitness” photograph of one person with what looked like a cut throat, and one of the reports above suggests that two persons suffered such a fate. Still, [the applicant]’s suggestion of having seen with his own eyes the “cut throats of many young and children in a short time” appears contradicted by independent evidence over time.
[The applicant]’s account to the Department regarding the Shi’a procession having been infiltrated by militants has some independent corroboration, although it does not sit with independent reporting about these infiltrators having been TTP militants rather than TNFJ (or TJP) activists, and his account of the procession’s Shi’a participants initiating the violence with a surprise burst of gunfire does not appear to sit with the large number of reports, emerging in the second half of November 2013 and in the course of subsequent investigations, to the effect that the procession passed the mosque during the broadcasting of an anti-Shi’a speech, causing a shouting match between the Ashura mourners and the men inhabiting the mosque at the time, then an exchange of stone-throwing and then gunfire from some of those men the mosque upon the Shi’a crowd below, some of whom then stole guns from police officers to fight back. [The applicant]’s account of what he saw happening at the mosque also does not sit with the contents of the First Police report he submitted to the Department, in which it is reported, “The students of the Madrassa start[ed] throwing/pelting stones on the participants of the procession. [The applicant] was later to tell me that he contributed information to this report under agreed conditions of anonymity, for his own protection, but here it can be seen that a key part of the report disagrees with what he said to the Department and later to the Tribunal. (See below.)
Also, [the applicant]’s account to the Department appears to omit, or at least appears unaware, that the “Jaffria Alliance”, the English-language generic for the TNFJ and TJP, publicly denounced the violence and asked authorities to prosecute anyone who had fired a shot on the day. (See paragraph 33 above.)
Submission to the Tribunal

In an 8 February 2019 pre-hearing submission to the Tribunal, [the applicant] addressed the delegate’s reliance in [Mr A] having “been incarcerated since December 2014.” [the applicant] submitted that the delegate’s assumption was wrong. [The applicant] went on to say that [Mr A] had been released from custody in early June 2014, as previously stated in his original protection visa application, and had been re-arrested “since then.” He also implied that [Mr A] had been released from custody a second time, for he claimed in his submission: “Recently, [Mr A] and some TNFJ members have approached some of my friends in Rawalpindi and asked for my whereabouts [threatening] that sooner or later I would come out of hiding and they would take their revenge by killing me.”
Having specifically associated [Mr A] only with the TNFJ, as he did in the paragraph 53 of his original statement to the Department (Department file at f.41), [the applicant] said in his statement to the Tribunal that the delegate erred in focusing on the threat the TNFJ in Karachi might or might not pose to him in the event of his relocating there. Citing the South Asia Terrorism Portal (SATP), he said that there were other groups that might locate him Karachi such as the Sipah-e-Mohammed Pakistan (SMP), which partly comprised former TNFJ members. He also cited several travel advice pages from various diplomatic websites about potential risks to travellers in Karachi. He claimed that [Mr A] has relatives in Karachi who met him before and who would remember his face.
[The applicant] claimed that since the Ashura incident was no longer the subject of much media attention, [Mr A] and the TNFJ would be able to kill him in a way that looked unconnected with them.
Oral evidence to the Tribunal
[The applicant] told me that prior to coming to Australia, first in 2012 and later in 2015 he resided at his family home with his parents and elder brother. I note that his sojourn back in Pakistan ran from January 2013 to June 2015. He told me his father is retired and currently supported financially by two brothers and himself in Australia and also by the brother in Pakistan, who works there as an [Occupation 1].
I note that [the applicant] remained in Pakistan for just over a year and a half between the Ashura Day incident and his own re-entry into Australia. During that time, as previously claimed, he was temporarily domiciled for his own security in a village 100km away from Rawalpindi. At the Tribunal hearing he indicated that that period only lasted a few months between June 2014 until “November [or] December 2014” when [Mr A] was re-arrested and held for just a couple of weeks. This means that he continued to reside at his family’s home throughout the first half of 2015, even though [Mr A] was living again at large in the community.
I took [the applicant] through his main claims more or less chronologically. With regard to the Ashura Day episode, he said he arrived at the mosque after a visit to his aunt’s and saw, amongst the Ashura mourning procession two groups of people, one armed with knives and the other with chains. He said he then saw some of the mourners snatch guns from the police, who present up till then to provide safety and security for the procession. I asked him how he survived on the ground as a Sunni in what he was describing as a Shi’a attack and he said he hid under a 3 m-by-1 m trolley. He said it was from under this trolley that he saw [Mr A] giving the order from on top of a wall to open gunfire on the mosque attendants as well as the “many” men and boys from inside the mosque dead with their throats cut. When I put to him that the delegate did not appear to have accepted that he had seen “many” people with cut throats, [the applicant] said he did because he was close to the mosque and saw the bodies on the stairs. He said he hid under the trolley for half an hour. I asked him what the police did and he said they fled, which is consistent with independent reporting. He said that, whatever happened after that, the violence was dissipated when “other law enforcers” came. Here his evidence struck me as being somewhat vague, in the claimed circumstances, considering that it was specifically agreed in reports from all sides that the Pakistani Army arrived after the police retreated and put down the violence quite quickly.
I asked [the applicant] what happened next and he said that he reported to the police that he had seen his friend [Mr A] leading the Shi’a rioters at the scene of the clash. He said he did this in secret and that the police afforded him all the secrecy and anonymity they could provide, on the assumption that [Mr A] might easily avenge betrayal by a friend or former friend. He said that this was why none of the police documents he obtained for submission to the Department make any mention of his name.
[The applicant] told me that when he reported to the police, the senior officer asked him to ascertain and share [Mr A]’s location. He said he subsequently went to see [Mr A]’s mother. He said it took him three requests over three separate visits to [Mr A]’s mother before she divulged [Mr A]’s location to him. I asked [the applicant] why it took him three requests on three separate occasions before [Mr A]’s mother divulged her son’s location, and he said she prevaricated on the first two occasions. This would suggest that [Mr A]’s mother did not want to give away her son’s secret location. I put to [the applicant] that [Mr A] might have instructed his mother not to tell anyone of his whereabouts. In reply, he said this would not have been the case because [Mr A] and his family trusted him. In seeming contrast to this, he had claimed in his original protection visa application (at paragraph 24) that [Mr A] stopped treating him as a friend even before the Ashura Day incident, refusing to engage him in conversation and ignoring his calls. I put to [the applicant] that if, in the claimed circumstances, [Mr A] and his family trusted him, it seemed reasonable to expect [Mr A]’s mother might have told him where [Mr A] was the first time he asked. He did not respond to this position directly.
[The applicant] said that on the third occasion, [Mr A]’s mother told him that [Mr A]’s cousins were hiding him. He said he was able to persuade her to give this information by telling her what the police had told him to say to her: that [Mr A]’s case was not going to go away and that if he remained a fugitive for too long he would never be granted bail, so it would be better for [Mr A] to present himself for arrest than not to do so. In this way, I observed, [the applicant] clearly identified himself with the police case against [Mr A] when he was making his enquiries to [Mr A]’s mother. I put to [the applicant] that this struck me as odd, given all the measures [the applicant] said the police had put in place to keep his participation in the investigation completely anonymous. In reply, he changed his evidence, telling me he did not ask [Mr A]’s mother for his location, but merely asked, “Where do you think he could be?” which, in effect was a reversion to the previous claim.
I note here that the version of events [the applicant] provided to me, regarding how he and the police located [Mr A], differed in significant details from what he had written in his original statement to the Department. In that statement, as noted above, he claimed that when asked by the police he offered to try to find out where [Mr A] was but, in fact, already knew [Mr A] was staying at his sister’s place but did not want to disclose this because he “wanted to protect” [Mr A]. He claimed he eventually agreed to tell the police what he already knew when they promised to provide him with security, and that he then led them personally to the home of [Mr A]’s sister where [Mr A] was arrested. In this version of events, there are no visits to press the mother for information, [the applicant] already had the information the police needed anyway, and there were no cousins hiding [Mr A].
There thus appear to be multiple discrepancies regarding [the applicant]’s role in implicating [Mr A] and aiding in his location and arrest, having the potential, at least cumulatively, to undermine his reliability as a witness in this matter.
I asked [the applicant] about the provenance of the “First Information Report” and its associated list of Ashura Day suspects, the original of the latter not present in evidence, its existence only implied by the presence of a purported English translation. I asked [the applicant] how the report and list had come into his hands and he said that after he came to Australia he asked his friend in the police for it. I asked him how he and his friend in the police (presumably [Mr B]) had communicated with each other in regard to these documents and he said they had communicated by email. I asked him if he had retained any of the emails or copies thereof and he said he had them in his mobile telephone, but when I asked him if he could show me, all he could present was a copy of the purported “First Information Report” in Urdu as found at f.50 of his Department file. He then said that his elder brother had sent the “First Information Report” and suspect list to him. I reminded him that I had been asking if he could show me evidence of the email communications he had had directly with the police officer, and he said that he then appeared to change his evidence about his communications with the police in Pakistan: he said he used to talk to his friend in the police force over the telephone. I reminded [the applicant] that he had just told me that he and the police officer used to communicate by email after he arrived in Australia and, in reply, he said he had actually been talking about the telephone. I reviewed what he had said earlier and put to him that he had explicitly said he and his friend the police officer communicated with each other between Australia and Pakistan by email. In reply, he said he had made a mistake. He then said his friend in the police had made it clear to him that he was not even able to talk to him directly at all, even on the telephone. He said that he called his friend three times and that only on the third call did his friend suggest proceeding indirectly through his ([the applicant]’s) elder brother. He said his friend in the police told him never to mention his name in connection with what he would pass on through the brother. He confirmed that the friend he was talking about was the abovenamed [Mr B]. I asked him why, in the circumstances, the police in Rawalpindi would only have given him these documents under strict conditions of anonymity and non-attribution and he said that the Pakistani government does not like giving information, which did not strike me as a plausible response in the claimed circumstances: the report, on a fair reading, has the attributes of a alerting the public about persons suspected of involvement in the riot and it is evidently signed by an individual police officer. Ultimately, [the applicant] provided me with what I consider to have been inconsistent and seemingly improvised evidence about how he obtained the “First Information Report” (by definition not an internal police minute but a report for external and informative use) and the purported “suspect list”.
I discussed with [the applicant] the question of what weight to give the report for two reasons: the first being that police reports including forged ones are reportedly obtainable quite easily for a price in Pakistan, such is the endemic corruption in that country[14]; and the second being that, even if the reports and notices he had submitted were genuine, they did not evidently corroborate his claims about having had any involvement in the search for and arrest of anyone involved in the Ashura Day incident.
[14] DFAT Country Information Report: Pakistan, 20 February 2019:
5.73 FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.
I asked [the applicant] how, after his arrest, [Mr A] had come to be released from incarceration after his arrest, especially since he, [the applicant], had borne witness to the police about [Mr A] having been giving orders on the day of the mosque attack for people to shoot and kill the mosque attendees, and given the allegations against [Mr A] that appeared in the police documents. In response, he said that Mr [Mr A] was granted bail. I asked if this was the result of a normal process, and he said it was not: he said that [Mr A] was in fact due to be granted bail along with other suspects when a state official formally requested his remand be extended, whereas he was released on bail in June 2014 anyway. This version of events seemed somewhat different from the one originally provided to the Department wherein [the applicant] suggested that [Mr A] used Shi’a contacts in the police force to have him released in circumstances where he otherwise would not have been released.
I asked [the applicant] about the time the police placed him in a safe house in [Mr B]’s village. He told me, as he had indicated in his statement to the Tribunal, that he was only able to stay there from June 2014 until November or December 2014 because that was when [Mr A] was re-arrested and when the police deemed that he, [the applicant], would no longer need such protection. He told me that [Mr A] was nevertheless re-released after only “a couple of weeks” and that the police refused to place him, [the applicant], under protection again because media interest in the Ashura Day incident had waned. As a result he continued to live with his family in Rawalpindi and, according to the evidence before me, nothing potentially significant happened to him in the six or seven months before he left Pakistan for Australia.
Given that media interest had not evidently been any kind of factor in providing [the applicant] with protection in [Mr B]’s village from June 2014, it struck me as odd that, in spite of [Mr A] allegedly threatening to kill [the applicant] directly or through proxies, the police told him he would be safe enough to manage for himself.
I put to [the applicant] that he never mentioned in his original protection visa application that his “witness protection” period, as it were, had ended half a year before he came to Australia, and that he had also never mentioned in his original application that [Mr A] had been re-arrested briefly and then released a second time. In response, he said he might have missed something. I put to him that it seemed a serious thing to have omitted given his claim to the effect that the previous granting of bail to [Mr A] had led quickly to his being assaulted and hospitalised. He said that he had mentioned it to the delegate, who had mistakenly concluded that [Mr A] had remained in custody up to the time of the primary decision, and that he had mentioned the second arrest and release in his submission to the Tribunal.
I asked why, in the claimed circumstances of having such good contacts in the police, [Mr A] would have been re-arrested in November or December 2014. In response, [the applicant] speculated, in essence, that there had been some attacks by Sunni on Shi’a mosques and that the authorities, in the course of investigating the Sunni perpetrators had to maintain the appearance of fairness by arresting some Shi’a. I put to [the applicant] that his explanation seemed to be based in bald speculation and he said that when the Shi’a were attacked, the government wanted to show that it was “doing something” and therefore re-arrested some Shi’a, implying that it did so to calm militant Sunni into desisting from further violence for the time being. This explanation seemed to me to be somewhat far-fetched but, in any event, [the applicant] did not disagree with the imputation that he was simply engaging in bald speculation.
I asked [the applicant] how he knew that [Mr A] was still on bail and living at large, and he said his brother sees him at his [shop] on his, the brother’s, way to work, and also because he visited his, [the applicant]’s, family in June 2019 asking for his whereabouts. I questioned why, if he had a reputation for being part of a mass killing of local Sunnis, [Mr A] would still be living and working in the same nearly locality where he himself might suffer revenge killing (the Sunnis in Pakistan, according to [the applicant], being just as capable to harming Shi’a as vice versa). In reply, he said that Shi’a in Pakistan have connections with the higher ranks of police in Rawalpindi.
Findings in relation to s.36(2)(a) of the Act
In the present matter, I find no none of the five factors cited in s.5J(1)(a) are an essential and significant factor in the harm [the applicant] claims to fear. He had no problems with Shi’a or Shi’a organisations, or with anyone for reasons of “religion” or “political opinion” or “membership of a particular social group” or the rest, prior to his claimed involvement in efforts to bring his former friend [Mr A] to justice in a criminal matter, and that issue is one squarely relating to the threat of individual criminal revenge.
That said, it would not be inappropriate to move on to considering [the applicant]’s claims as complementary protection claims. However, before I do that I have some findings to make about the quality of his claims and evidence.
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[15] 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.[16]
[15] MIMA v Rajalingam (1999) 93 FCR 220.
[16] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[17] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[18]
[17] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[18] Sun v MIBP [2016] FCAFC 52 at [69].

Having considered all of the evidence in its entirety, I find that [the applicant] is not a reliable witness in the present matter.
My findings are cumulative. In particular, [the applicant]’s claims over time about how he assisted the police in locating his purported friend [Mr A] are not consistent with each other, and whereas time came have an effect on a person’s capacity to recall events accurately, [the applicant]’s evidence at the Tribunal hearing was, as shown above, inconsistent with his earlier evidence in multiple ways. I consider the account he gave at the hearing to have been the product of improvisation. I do not accept that he would have entered into a secret relationship with the police and then put the police case to [Mr A]’s mother as a way of engaging her trust to tell him where to find [Mr A]. I do not accept that [the applicant] led the police to [Mr A] and this being the case, I find it hard to accept that [Mr A] attempted or ever intended to retaliate with threats and/or acts of violence against him.
I find that [the applicant] gave inconsistent and unreliable evidence as to the special and individually sensitive circumstances under which he obtained the purported “First Information Report”. I have given this deficiency in his evidence some weight in this matter.
I find that [the applicant] has provided inconsistent evidence over time as to how long he was placed under the protection of the police in the village away from Rawalpindi. I find that he has given inconsistent evidence over time as to how many times [Mr A] was arrested. I find that the evidence he gave as to how and why his period of protection ended six months or so before he came to Australia to be implausible and far-fetched in the claimed circumstances. I find that his efforts to explain why [Mr A] was re-arrested in late 2014 were based in bald and far-fetched speculation.
Bearing all these problems in mind, I am unable to accept that [the applicant]’s claimed eyewitness account of what happened during the Ashura Day incident in 2013 differs from so many (arguably incomplete) independent reports simply due to factors of natural subjectivity and sight limitations. I am of the confident view, having considered all of the evidence before me in its entirety, that [the applicant] has concocted his account of witnessing the Ashura Day incident and his purported friend [Mr A]’s role in it. I do not accept that he was ever there.
Having considered all of the evidence before me, I also find that [the applicant] has invented the information he gave about TNFJ planning, infiltration and culpability in the violence that occurred in Rawalpindi of 15 November 2013. His claims about TNFJ culpability are not supported and in fact are contradicted by a range of independent sources.
Since I find that [the applicant] was not at the Jamia Taleemul Quran mosque and madrassa during the violence of 15 November 2013, I do not accept that his purported friend [Mr A] could have even mistakenly apprehended that he helped the police to arrest him. Following from this, I do not accept that [Mr A] has ever threatened [the applicant] either directly or through friends. For similar reasons I do not accept that [the applicant]’s family was ever approached by anyone seeking to cause [the applicant] potentially relevant harm.
Given [the applicant]’s poor performance as a witness in this matter I give no weight to the purported “suspect list” naming [Mr A]. For similar reasons, and also bearing in mind, one, that forged documents are easily obtained in Pakistan and, two, that [the applicant] has given unreliable evidence as to the provenance of documents submitted in this case, I give no weight to any of the purported communications with or by police, including the letter requesting police protection.
I am not even satisfied, on [the applicant]’s performance as a witness, that he even had a Shi’a friend called [Mr A] with whom the friendship went sour after the latter became involved in Shi’a activism.
Regarding the purported [June] 2014 medical report, I have shown why I have concerns as to its competence and, hence, its authenticity, but, in any event, I give it little no weight in this matter due to [the applicant]’s poor performance as a witness in relation to his substantive claims. That is to say, even if I accept that it is a genuine medical report, and I am not confident that it is, I am not satisfied that it was issued in the context [the applicant] has claimed.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted are not well founded. He is not a refugee.
For these reasons, there is no need for me to consider the question of relocation, notwithstanding that this factor was critical to the delegate’s decision, particularly after the delegate somehow concluded that [the applicant] was a credible and consistent witness.
For all the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(a) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
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.
Accepting that [the applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims for want of any nexus to the five factors cited in s.5J(1)(a) but also, as shown, due to fa fairly comprehensive lack of credibility. In the circumstances, his claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Tehrik-e-Jafaria Pakistan (TJP),” Global Security, “Page last modified 09-07-2018”,

[2019] AATA 5748

23 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction