1617227 (Refugee)

[2019] AATA 4628

1617227 (Refugee) [2019] AATA 4628 (8 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617227

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nora Lamont

DATE:8 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 July 2019 at 9:47am

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – Shia Muslim – particular social group – educated women in Pakistan – doctors in Pakistan – former female politician – political opposition to Taliban – evidence and claims lack credibility – applicant’s husband voluntarily returned to Pakistan – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Pakistan applied for the visas on 7 April 2015.

3. The applicants appeared before the Tribunal on 3 December 2018. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicants were represented at the hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their 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).

8. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.  

9. 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

10. 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

11. According to information on the Departmental file and confirmed at the Tribunal hearing, the primary applicant is [an age] year old female born in Pakistan. She is married with three children. Two of her children reside with her in Australia and her husband and eldest daughter remain in Pakistan. Applicant two and three are the children of the primary applicant and both were born in Pakistan.

12. The applicants claims are summarised accurately by the delegate and are as follows: [1]

    [1] CLF [file number]

    ·She fears harm in Pakistan on account of her female gender, her Shia religion; her political opinion against the Taliban and her profile as a former prominent female politician who promoted the rights of minorities; her profile as an educated Pakistani woman; her occupation as a [Occupation 1]; and her relationship with her husband who is also a prominent politician and [Occupation 1] who has spoken out publicly against Islamic extremists groups.

    ·Her husband has a strong political and religious background. Her father in-law, who died before her marriage, was a member of the peace committee formed to work with local police to maintain peace between Sunni and Shia. Her mother-in-law also used to work for the welfare of women and took part in religious ceremonies.

    ·Her husband started his political career as a member of the PPP’s student Federation. Once he finished his studies, he progressed to joining the PPP and became very politically active. He also followed in his father’s footsteps and became a member of the Peace Committee.

    ·In 2001. Her husband participated in the local elections as a member of the PPP and was elected [Position 1]. In the 2005 local elections, her husband was nominated by the PPP as [Position 2]. However, Sunni extremists directly campaigned against him. They graffiti his posters with slurs stating he was an infidel and a non-Muslim.

    ·In the [City 1] District Assembly, women have reserved seats that are voted by Councillors and Chairman. Because she was a well-known activist in her community, she was nominated for this seat by the PPP and won the votes. She was a district member of the [City 1] Assembly from 2006-2010.

    ·In 2006, her husband was nominated and awarded the post of [Position 3] [in] [City 1]. He promoted PPP campaign and recruited new PPP members. They raised the profile of the Shia community and other minorities in the [City 1] District to protect them from racism.  Because of their popularity, local pro-Sunni activists targeted them by abuse and slurs. However, they kept working hard in their community.

    ·In about 2013, local body elections were announced. Her husband ran for [Position 4]. Fundamentalists and extremists such as Lashkar e Jhangvi and the Taliban campaigned against her husband and his posters were burnt and replaced by the logo “Shia is non-Muslim”. Although the election was subsequently postponed, her family continued to receive letters thrown at their home stating that Shia’s were non-Muslims. The language used in the letters was highly derogatory and abusive.

    ·On 2 December 2014, her family applied for visas to Australia to take the youngest two children to [Event 1]. The visas were granted on 20 December 2014.

    ·On 16 December 2014, several children were inhumanely murdered in a Peshawar school. Her husband moved quickly to condemn the perpetrators. On 27 December 2014, her husband took the opportunity on the anniversary of the death of Benazir Bhutto, to link these two events and spoke openly, highly criticising the Taliban and other extremist through the platform of their local newspaper. After this incident, their situation became extremely unsafe and they received more threats to their life.

    ·On midnight [in] January 2015, her husband was attacked by two unknown men near their home. Three bullets hit two inches from the front seat of his car but he was unharmed. He registered a First Incident Report (FIR) at the local police station and was provided with a police guard for a couple of days.

    ·After this, they started to receive specific threats as opposed to derogatory and abusive letters which they had received in the past. [In] February 2015, someone fired at the gate of the house, they reported the incident to the police but they did not investigate. Her husband requested protection from the police but they did not provide any. Her family moved to Karachi and instructed their lawyers to issue court proceeding to direct the police to file FIR.

    ·They realised that Karachi was even more dangerous than [City 1]. Shia Muslims, including Shia [Occupation 1]s, were being targeted by extremists in Karachi. They decided to apply for asylum in Australia as they already had their travel visas.

    ·She and her family arrived in Australia [in] March 2015. Her daughter [Miss A] was a student at the University [City 1] and did not accompany them to Australia. [Miss A] became distressed when she found out it would take a long time for the protection visa to be considered and processed.

    ·Her husband was under a lot of pressure which affected his mental and physical health. He was very stressed about leaving [Miss A] behind. [Miss A] was very close to her husband. Her husband suffered an anxiety attack where an ambulance had to come to their house. It stressed him even further when he received a large bill for the ambulance.

    ·After applying for protection, her husband started to panic and decided to return to Pakistan. There was a lot of tension. She was terrified of being left alone in Australia without her husband. They are now separated and extremely stressed about his safety. He now lives in hiding moving from place to place. Her husband is still outspoken against Islamic extremism despite the very serious and real threat to his life. His auctions will continue to put his and his family’s lives in danger.

    ·She is in Australia on her own with her two children and finds it very difficult and stressful. She requests the Australian government to grant her and her family protection.

    Claims of applicant two and three

    ·They left Pakistan because they feared for their lives. As Shia Muslims, they have been targeted and attacked by the Taliban and other extremists groups.

    ·Their family received extreme death threats in late 2014. In early 2015, their father was attacked near their home. [In] February 2015, someone shot at their house; they do not know who attacked them but believe it was the Taliban or other extremists groups.

    ·They fear that their family will be harmed or killed on account of their Shia faith and their parents political, education and work profile.

13. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Pakistan, there is a real risk that they will suffer significant harm. 

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

15. The applicants travelled to Australia on valid Pakistani passports and they state they are nationals of Pakistan. The delegate had no concerns about the applicants’ identities. Therefore the Tribunal has assessed the applicants’ claims against Pakistan as their country of nationality and their receiving country.

    Tribunal Hearing

16. The applicant said she did a bit of [work in a specified area] but then she took the [Occupation 1] course. She finished the course in 2001. She did the course with her husband. He had other businesses so he didn’t take part in the whole of the business. They opened a [Occupation 1 business] and business was good and because of this business she got into social work and was able to help women. The applicant moved the business to her home as the building where she worked was sold. When she started her [Occupation 1] work she came across a lot of women from different social economic backgrounds and problems so she started helping them out.

17. The applicant started a [specified] school and she would give out [tools and materials]. She started teaching women in small groups as well. The local political party [gave] her some funding and some government funding as well.

18. In 2005 she joined the [City 1] Assembly and she was recognised in the street and she was recognised for the work she did. The applicant’s husband’s family were active in the Peace committee and in social work and she started working with then and her husband became a local [Position 1] before I did in 2001. I became the Member and I helped children, enrolled them in school, handed out books and small funds and whoever could pay us back would do so. [Her] area in [City 1] was [Town 1]. There were approximately [number] people there were Sunni, Christian, and Shia all kinds.

19. The applicant said in 2010 there were no elections after that it was the military until last year’s election. The Tribunal asked did anyone else do this kind of work after she finished. They did try to do more work and she continued her social work.

20. The Tribunal asked if she was discriminated against for being a woman while doing this work. She said not really, sometimes there would be hoots but she would just ignore them. When asked about being discriminated against due to being a Shia the applicant said that they did not do it to her face but you could she could see it out the corner of her eye. In general they had a hated attitude towards me. As soon as someone found out she was a Shia they would become stand-offish.

21. The Tribunal asked why in her written claims she fears harm based on her female gender. The applicant said ever since she started this work she would get hate messages at her house, calling her and her husband infidels and calling for a Fatwah to kill us. When she would come home she feared for her safety and people on bikes would try to push her. The Tribunal said that was not the question that the question was about why she feared harm based on her gender. The applicant responded that no one in her area was doing as much work as her and she was getting so much recognition, being a woman and a Shia and not even her husband got that much recognition. The Tribunal said it sounds like you were doing a lot of work and people admired you. The applicant said that in Pakistan people don’t appreciate women doing these things and she had posters of herself and there was jealousy and hate.

22. The applicant said she was inspired by her mother in law and she enjoyed her work. The Tribunal said there has not been any reason given to the Tribunal indicating that there was harm for you as a female and why you would fear harm based on your gender. In fact she was elected to the Assembly and was doing a great job. People were jealous and hateful, she was a Shia woman. People just didn’t like it. It was not until she got so much opposition that she had to stop her work.

23. At first it was just snide comments, then it turned into pamphlets at home, then her husband’s incident and she feared for her husband’s safety. They would give us messages like infidels and kill us. The Tribunal asked if this was against her or her husband. The applicant said her and her husband were one entity-one Shia entity. They were like one person as she always worked with him.

24. The Tribunal said that most of the claims are around her husband and started after the call for the 2013 election (which did not happen but the campaigns did) of the children in Peshawar and most of the claims are about her husband who isn’t even in Australia. The applicant said he gave that statement not her, so that is why he was attacked. He was extroverted in his opinions and I was against that. She got really scared after that. The Tribunal asked how many letters she received. She said quite often when you would go out they would be there. They would call as well, and call on the landline until they changed it. They would say why are you saying these things and I would just cut them off. The applicant said the hate for them as Shia’s was always there but it was during this 2013 period when it got bad. The applicant said her husband was really open about the Taliban.

25. The Tribunal asked the applicant that in the midst of all these calls and pamphlets and scary times she and her husband decided to come and [attend Event 1]. The applicant said they always went on holidays around this time, [they] decided to come to [attend Event 1]. They used to go to Europe. Then on the anniversary of the death of Benazir Bhutto her husband criticised the Taliban. The Tribunal asked why he was publically denouncing as he wasn’t an elected person. The applicant said he was the [Position 3] of the PPP at that time.

26. Between December and January the applicant’s husband was shot at whilst driving his car. The bullets hit the car but he was uninjured. Then in February someone shot at the gate of their house. This was reported to the police but they did not investigate. Then the applicants’ moved to Karachi as the police would not do anything about these ongoing threats. They moved in with her brother at her parents’ house. But the circumstances were not good there and Karachi was even more dangerous than [City 1]. There were widespread killings, targeted killings of Shias. Also there is no one there to assist you we brainstormed where we could get protection and we already had the visas to Australia.

27. The applicant’s oldest daughter did not have a visa and she had just started University so we came with our other two children. There was a lot of stress getting everything together to leave. The Tribunal said that in her written claims the applicant said her older daughter is in danger in Pakistan due to her gender and she has to hide her intellect she will always live a depressed life in Pakistan as she would. The Tribunal shared its concerns with the applicant that she would pack up her life with her husband and other two children yet leave the oldest one behind and then claim her daughter is in danger. The applicant said they thought they would get protection then she could come, she tried to save as many children as she could.

28. The applicant said it’s always stressful and her husband has high blood pressure. She said that he is not mentally ok and she didn’t want him to go back to Pakistan. She said her husband was worried about his daughter and this is why he went back to Pakistan. Her husband is still in contact with people he used to work with and his brother helps him out with money, but she doesn’t really ask him any questions. She says he stays in different places but he is in [City 1]. He isn’t social and his mind doesn’t function properly. He was at her brother’s place with her daughter and was attacked but he didn’t tell her. Her daughter is talented and she took part in speeches and I have asked her to repress herself. She is still in school [studying].

    Credibility

1. 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’.

2. 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’.

3. 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.

4. 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).

5. 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.)

6. The Tribunal finds that some of the applicant’s evidence and claims to lack credibility. The applicant by all accounts was a successful and highly respected member of her community. She and her family appeared to be comfortable in their living, as she expressed that they always travelled and went to Europe on school holidays. Indeed, the applicants all came to Australia on visitor’s visas to come to [attend Event 1]. The Tribunal considers that in the midst of the applicant’s husband being the target of the Taliban and being shot at they planned and executed a holiday to Australia to [attend Event 1] which does not seem to lend itself to fleeing Pakistan in fear.  Further, if the applicants really feared for their safety and fled Pakistan the Tribunal considers that they would not have left their eldest daughter in Pakistan and if she was in danger she would not still be at the [university].

7. The applicant’s husband who is by all accounts the main target of the Taliban and other extremist groups departed Australia and returned to Pakistan in 2015. The Tribunal considers that this erodes and undermines the credibility of the applicant.

   Shia Religion

8. The Tribunal accepts that all three applicants are Shia Muslims and practice their faith. However, at the hearing the applicant talked in generalities about being Shia and that some people snickered at her but there was no real threat to her based on her being Shia.

9. The Tribunal brought up some country information to discuss with the applicant about being a Shia and fearing harm. DFAT has no evidence of systemic discrimination against Shia’s in gaining employment in the public service, police, military or the private sector.[2] Further, when the Tribunal asked the applicant about being a Shia she never said she had fear or relayed to the Tribunal that she had fear for being Shia, apart from being sneered at. The applicant said an attack on the family is an attack on her. The Tribunal said that did not answer the question about being a Shia. Even the Prime Minister who was Shia was attacked and received threats from the Taliban. An eye specialist in Lahore was killed for being a Shia. A lot of people didn’t want any woman to come forward and get ahead. In 2009 we were in the paper and people thought it was bad to be in the paper. These sentiments increased over time.

   [2] DFAT Country Information Report Pakistan 20 February 2019 page 36

10. The Tribunal put to the applicant that [independent] information indicates that [City 1] is [Shia friendly].  Shia’s and Sunni live side by side without major problems. [3] The applicant responded that a lot of people are killed and it is not reported. The Hazara people were killed it took three days to report it. The Tribunal put to the applicant that overall anti-Shia violence is down from previous times. DFAT reported that in 2016, Shia made up fewer than 15% of those killed in sectarian violence. The two biggest attacks of the year—an attack targeting Christians in Lahore on Easter Sunday and an attack on a Sufi Shrine in Balochistan—did not target Shia’s. This fact combined with a significant decrease in overall sectarian violence across the country, mean that Shia comprised a relatively small proportion of the total victims of sectarian violence. Around 820 Shia’s have been killed in sectarian violence since the beginning of 2013, out of a total Pakistani Shia population of about 30 million. [4] The applicant responded that a father and son were killed in Karachi and a lot of people are killed and they are not reported and most of them are Shia’s. Lots of Shia’s have their flags knocked down on their houses. There are religious attacks.

    [3] [source deleted]

    [4] DFAT Country Information Report Pakistan 1 September 2017 page 16

11. Based on the applicant’s own evidence and available country information the Tribunal does not accept that the applicant fears harm based on being a Shia Muslim. Based on this finding the Tribunal does not accept that the applicants will face a real chance of persecution based on their Shia religion and does not accept that they have a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicants are not refugees within the meaning of s.5H(1).

    [Occupation 1]

12. The Tribunal asked the applicant to explain why she had stated in her written claims that she feared harm as a [Occupation 1] yet when we were discussing it at the Tribunal hearing she never once mentioned a fear about being a [Occupation 1]. She said she cannot isolate that from the rest of her claims. It is being a [Occupation 1], a woman, a Shia. They don’t want a woman to get ahead in society. The Tribunal finds that the applicant was not treated differently, discriminated against or in any way harmed based on being a [Occupation 1] and the Tribunal has considered that neither she nor the other two named applicants have a well-founded fear of persecution based on her being a [Occupation 1].

    Female in Pakistan & Educated woman in Pakistan  

13. The applicant claims fear of harm in Pakistan because of her gender. When asked at the Tribunal hearing to explain this fear, the applicant said that she was getting so much recognition, and no one in her assembly did as much work as she did and people were jealous of her, she said people couldn’t get their heads around her, how a Shia woman was doing so much, they were all against her.

14. DFAT assesses that Shia’s are well represented in parliament and regularly contest elections for mainstream political parties. DFAT further assesses that there are no barriers preventing Shia’s from actively participating in democratic processes in Pakistan due to their sectarian affiliation. [5]

    [5] DFAT Country Information Report Pakistan 20 February 2019 page 36.

15. DFAT further assesses that Shia’s in Pakistan face a low risk of sectarian violence. [6] Whilst country information does indicate that women do face societal discrimination in Pakistan there is nothing in the applicants written or verbal evidence to indicate that she has suffered persecution based on being a woman. On the contrary, the applicant has had a remarkable career in the community alongside a seemingly very supportive husband and nothing in her evidence alluded to her being targeted based on being a female and an educated female in Pakistan and therefore the Tribunal does not believe that the applicant has a well-founded fear of persecution for being a female and an educated female.

    Newspaper article

    [6] DFAT Country Information Report Pakistan 20 February 2019 page 36.

16. The applicant claims that on 16 December 2014, several children were inhumanely murdered in a Peshawar school. Her husband moved quickly to condemn the perpetrators. On 27 December 2014, her husband took the opportunity in the anniversary of the death of Benazir Bhutto, to link these two events and spoke openly, highly criticising the Taliban and other extremists through the platform of their local newspaper, After this incident, their situation became extremely unsafe and they received more threats to their lives.

17. However, the Department did an investigation in to the newspaper and found that it ceased operation in 2011. The Department did further checks and could not find that it was registered, was unknown to the Press Clubs and that the clipping provided did not appear in any [City 1 editions] of any popular/known magazines or newspapers. The applicant responded that the spelling was wrong and that it was a weekly newspaper not a daily newspaper and that the newspaper is part of [a specified network] which has four different newspapers.

18. The Department then did further checks and found that no one had any idea or had heard about the [network] and its affiliated newspapers.

19. The Tribunal invited the applicant to explain why the Department did not accept that there was a newspaper article about her husband and that when the Department checked in Pakistan they found that the newspaper did not exist. The applicant said it was a local paper and that’s why they were published in it. The Department said it was a false document. The Department also did further checks after the applicant said it was spelt wrong and still could not find that the newspaper existed.

20. Having received copies of the alleged newspaper reports and the information provided by the Department after an extensive investigation in Pakistan the Tribunal does not accept that the article is real and does not accept that the applicant’s husband had this published which then led to his being targeted by the Taliban. Having regard to the Departments investigation and conclusion that there is no newspaper named as above, and with regard to DFAT which states ‘Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories’ [7]  the Tribunal does not accept that her husband posted in the newspaper against the Taliban and that he was subsequently shot at, received threats and letters or that the family’s life was in danger.

    Political Opinion

    [7] DFAT Country Information Report Pakistan 20 February 2019 page 71

21. The Tribunal accepts that the applicant was a district member of the [City 1] Assembly from 2006-2010. Whilst the Tribunal accepts the applicant was a political figure, from her own evidence she was extremely good at her job, her name was everywhere and she helped a lot of people. Not once during the hearing, except for when she said sometimes people sneered at her or were ‘jealous’ of her she did not indicate that her political profile was the source of persecution or that she was harmed or feared harm because of her profile.

22. Shia’s are well represented in Parliament and regularly contest elections for mainstream political parties. ‘DFAT assesses that there are no barriers preventing Shia’s from actively participating in democratic processes in Pakistan due to their sectarian affiliation’. [8]

    [8] DFAT Country Information Report Pakistan 20 February 2019 page 36

23. In this context, the tribunal does not accept that the applicant has any genuine personally held fears of persecution for reasons on ‘political opinion’ and accordingly, the applicant does not have a well-founded fear of persecution if she returns to Pakistan.

    Taliban and other extremist groups

24. The applicant claims that her husband was attacked by two unknown men near their home in January of 2015. Three bullets hit two inches from the front seat of his cat but he was unharmed. He registered a First Incident Report (FIR) at the local police station and was provided a guard for a few days.

25. After this they started to receive specific threats as opposed to derogatory and abusive letters which they had received in the past. [In] February 2015, someone fired at the gate of the house, they reported to the police but they did not investigate. The applicant’s husband requested protection from the police but they did not provide any. Her family moved to Karachi and instructed their lawyers to issue court proceedings to direct the police to file a FIR.

26. The applicant provided a police statement taken by her husband [in] November 2018 [in] which he says he is still getting phone calls and threatening letters. She also provided a translated newspaper article about her husband and the threats that he was receiving.

27. Whilst the Tribunal does not doubt that the applicant’s husband may have received abusive phone calls and she may have picked up some as well, and he may have received threatening letters, the applicant’s husband by her own account has a political profile and therefore is a public figure that is more likely to be the target of abuse. However, given that the applicant’s husband has returned to Pakistan and has remained there for the last four years the Tribunal finds it remote the chance of significant harm.

    Husbands return to Pakistan

28. The Tribunal considers that many of the claims made by the applicant surround her husband and his profile with the Taliban and other extremists groups. In fact, as the applicant herself wrote in her claims her husband was the target of the extremists and yet he left Australia and voluntarily returned to Pakistan. The Tribunal considers that if the applicant’s husband was being targeted by the Taliban and other extremists groups he would not have voluntarily returned to Pakistan, nor would he have left his daughter to fend for herself while the rest of the family came to seek protection in Australia.

29. The Tribunal asked the applicant about how her claims are mostly centred on her husband who was in Australia but went back to Pakistan. The applicant said that when her husband made that statement it was him not me and that is why he was attacked. He used to be quite active and letters and calls started coming in. They would call on the landline and they would threaten to kill based on our Shia faith, or they would say abusive things. I would just cut off the calls not listen to that abuse. All of this happened before the proposed election of 2013.

30. The applicant stated that her husband and she were one ‘Shia unit’ and based on the evidence before the Tribunal it appears they did work closely together. Now that her husband is in Pakistan and has been so for the past few years and has not suffered harm and her daughter has been in Pakistan the whole time and has continued her studies at the university, and both her husband and daughter are living in [City 1] once again, the Tribunal finds that the applicant and her two children can return to their home in Pakistan.

    Medical Assessments

31. The Tribunal was aware that the applicant suffers from depression and anxiety. The Tribunal was provided with a letter from the applicant’s primary care physician in which he outlines that the applicant has been having nightmares and anxiety and that she takes [medication] daily to assist her. [9] The Tribunal was also mindful that applicant three was hospitalised [at] the time of the Tribunal hearing and that was causing the applicant anxiety as well. [10] The Tribunal also has regard for the letter from [a rehabilitation organisation] dated 2016 about the applicant and her two children. [11]

    [9] AAT Folio page 65

    [10] AAT Folio page 83

    [11] AAT Folio page 48

32. At no time during the Tribunal hearing did the applicant express that she could not continue the hearing, that she was unable to fully participate or that she needed an adjournment. On the contrary the applicant was open and spoke freely and at length throughout the hearing.

    Applicants two and three 

33. Applicants two and three claim they left Pakistan as they feared for their lives. As Shia Muslims, they have been targeted and attacked by the Taliban and other extremist groups. They claim that they received extreme death threats in late 2014. In early 2015, their father was attacked near their home. [In] February 2015, someone shot at their house; they do not know who attacked them but believe it was the Taliban or other extremist groups. They fear that their family will be harmed or killed based on their Shia faith and their parents political, education and work profile.

34. As above, the Tribunal does not accept that the applicants have been or will be persecuted on account of being Shia Muslims. The relevant country information as above indicates that Shia’s are living throughout Pakistan with a large Shia community in [City 1] where they are from and that they actively participate in political and community life. Further, as above the tribunal does not accept that they will be harmed based on the political, educational or work profile of their parents.

35. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk of significant harm. Including that the applicant’s will suffer significant harm based on these claims, both individually and cumulatively considered.

    Conclusion

36. The Tribunal has considered the applicants risk cumulatively based on her claims of being female, Shia, political, educated, and being a [Occupation 1] and found that the applicant does not have a genuine personally held fear of persecution for any of the claimed nexus reasons outlined in s.5J(1)(a) or any other reason, written or oral, in returning to the applicant’s country of nationality and reference, as the Tribunal finds that the applicant’s written and oral claims for protection have been embellished and exaggerated.

37. Based on above, and the findings of the Tribunal both individually and cumulatively, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk of significant harm, including that the applicants will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to cruel or inhumane treatment or punishment; or they will be subjected to degrading treatment or punishment as required by s.36(2)(aa) of the Act.

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

    DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

   Nora Lamont
   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.

   …

   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 them 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …