1618085 (Refugee)

1618085 (Refugee) [2020] AATA 5558 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1618085

COUNTRY OF REFERENCE: Pakistan
MEMBER:Mara Moustafine
DATE:24 November 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 November 2020 at 4:33pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Muslim and activist – targeted by Sunni extremist group – Sipah-e-Sahaba (SSP) – Lashker-e-Jhangavi (LEJ) – imputed political opinion – opposition to Sunni extremists and the Taliban – credibility concerns – contradictory evidence – false information in prior visa application – bogus marriage – delay in applying for protection – voluntary return to Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155 at 169-70
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 17 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a citizen of Pakistan, aged [age]. Departmental records indicate that he first arrived in Australia [in] May 2011 on a Student dependent visa and was subsequently granted another Student visa valid until 24 September 2015. He departed and returned to Australia several times, most recently [in] January 2015. He applied for a Protection visa on 1 September 2015.
Evidence before the Department
Protection Visa Application
According to his protection visa application, the applicant was born on [date] in Jehlum, Punjab province and was living there until he came to Australia. He is of Punjabi ethnicity and a Shia Muslim. He completed [school level] and was a farm worker in Pakistan. He married his wife [Ms A] [in] 2006 in Faisalabad and she and their [children] live in [a location in], Jhelum, Pakistan. His mother, [and specified family members] also live in Pakistan. His father is deceased. The applicant speaks, reads and writes in Urdu and has very limited spoken English.
The applicant left Pakistan legally from Islamabad airport [on] his own passport issued [in] 2010, a copy of which he provided to the Department. He arrived in Melbourne [in] January 2015. Since first arriving in Australia, he has visited Pakistan on three occasions: between [September] and [October] 2012; between [February] and [March] 2014 and between [November] 2014 and [January] 2015.
Key relevant points made by the applicant in a statement dated 2 September 2015 submitted with his application, were as follows:
a.He belongs to the Shia religious group and his family is known in his area for promoting Shia activities. His father was [Office Bearer 1] of [Shia Organisation 1]. The applicant became the [Office Bearer 2] of this organisation in 2004. In this role, along with others he used to organise the Moharram functions and invite scholars to preach about the Shia sect. Due to these activities, he started to receive threatening calls from Sunni extremists from 2009.
b.On the advice of his family, he left Pakistan on a student visa arranged by a consultant in Pakistan, who advised him to ‘marry a girl on paper’ and coming to Australia as her dependent. He did not live with the girl in Australia, but she continued to include him in her visa. His intention was to stay in Australia until the situation in Pakistan ‘became normal’ and then to return to live with his family.
c.He lost contact with his family when he left Pakistan and returned three times to look for them. On his third return visit in 2014 he contacted [Shia Organisation 1] to seek their help to trace his family and attended a meeting of the organisation. When returning after the meeting, he and his friend were shot at by Sunni extremists and sustained injuries.
d.He was hospitalised then returned to Australia.
e.Sometime after his return, he lost contact with the girl on whose visa he came to Australia as a dependent. Fearing he would be sent back to Pakistan, he sought immigration assistance and applied for a protection visa.
f.He fears that if he returns to Pakistan, he will face serious harm because he is a Shia; an activist and [Office Bearer 2] of [Shia Organisation 1] actively involved in Shia activities; from an activist Shia family; and opposed to Sunni extremists and their activities.
g.He cannot get state protection because Sunni extremists, including the Taliban, have connections with the authorities and he will continue to face harm even if he moves to other parts of Pakistan.
In another undated statement the applicant provided to the Department, he claimed that:
a.There was enmity between his father and local residents belonging to the Sunni Ahl-e-Sunnat, headquartered in Jehlum, due to his father’s promotion of the Shia sect and propagation of Shia doctrine. Most of them were from Sipah-e-Sahaba (SSP) and Lashker-e-Jhangavi (LEJ) and ran their activities targeting Shia from there.
b.After completing his education, he began supporting his father in his activities. As a result, people from SSP and LEJ threatened them several times, demanding that they quit the Shia sect and join their Ahl-e-Sunnat sect. After his father’s death, the applicant was pressured by Shia people to continue his father’s mission, which he did.
c.The Shias received no protection from the government and their circumstances deteriorated. Their places of worship were attacked, and leaders assassinated. He was also attacked, and his arm was fractured, but he escaped death. In another incident, there was a bomb blast while all his family members and local residents were attending a Majils (religious sermon) in Lahore. Many people were injured and lost their lives.
d.His sect told him that it was difficult for him to live in Pakistan. They arranged his visa and he came to Australia. But his ‘family unity’ was shattered.
e.In 2014, he returned to Pakistan expecting that circumstances might return to normal, but ‘they’ had come to know that he had returned and attacked him again. He received bullet injuries in his leg and was hospitalised. When he recovered, he went to stay with a friend in Sindh province but one day his friend told him that some people were asking for him and expelled him from his home. Thus, once again, he came to Australia, where he feels safe and protected.
The applicant submitted the following documents in support of his application:
a.Photocopies of bio data pages of his two Pakistani passports, one issued [in] 2010 and another issued [in] 2015 and valid [until] 2020; as well as pages showing exit and entry stamps, an Australian [student visa] valid until 19 December 2012 and another [student visa] granted on 20 August 2013 and valid until 24 September 2015.
b.An English language medical report from the Government of Punjab Health Department dated [in] December 2014, noting that the applicant had been beaten by ‘some religious person’, sustaining injuries to his left ankle, multiple bruises and swelling over [a body part].
c.A translated First Information Report (FIR) [number] from [Police Station 1] in Jhelum district dated [in] December 2014 which stated that the applicant verbally reported that, while returning by motorcycle to their village from [Town 1] that afternoon, he and his companion were shot at by two unknown persons resulting in the applicant falling off the bike and injuring his head. He claimed that the attack was an assassination attempt on him planned by the head of the local SSP because he is the [Office Bearer 2] of the Shia sect of [Subdistrict 1]. It noted that the case had been registered and police had started an investigation of the crime.
d.Translation of an undated notice stating that [in] November 2014 a meeting was called by the applicant, [Office Bearer 2] of [Shia Organisation 1], [Subdistrict 1], [Town 2], District Jehlum.
e.An undated statement by [Mr B] as the [Office Bearer 3] of the [Shia Organisation 1], [Subdistrict 1], identifying officeholders of the organisation, including the applicant as [Office Bearer 2] and [Dr C] as General Secretary.
f.An undated letter signed by the General Secretary, President and [Office Bearer 3] of [Shia Organisation 1], [Subdistrict 1], identifying the applicant as the [Office Bearer 2] of the organisation, responsible for all Muharram arrangements. It stated that the applicant was attacked by the SSP group and the case [number] had been registered in [Police Station 2] of Jhelum district [in] November 2014. It also stated that, as the head of the SSP of this subdistrict was against the applicant because he was [Office Bearer 2] of the Shia sect and patronised all Shia programs, it was dangerous for him to return to Pakistan as ‘any incident can happen’.
g.A translated Nikah Nama (marriage certificate) registering the marriage of the applicant and [Ms D] (date of birth [specified]) [in] 2009.
h.A letter from a doctor dated 19 September 2016 stating that the applicant had a long standing history of depression, anxiety and insomnia due to his unstable immigration status and inability to contact his family in Pakistan.
On 27 September 2016 the migration agent submitted a statement from the applicant in which he identified himself as the [Office Bearer 2] of [Shia Organisation 2] and stated that he was the organiser of all programs of his Shia sect in [Village 1]; that he had been assaulted and injured by an opposing sect (SSP) on several occasions, including Case [number] dated [in] December 2014 registered upon his statement by the police [at Police Station 1].
The delegate refused to grant the applicant a Protection visa on 26 October 2016.
Application for Review
On 31 October 2016, the applicant sought review of that decision. He was represented in relation to the review by his registered migration agent.
On 28 February 2020, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case on 19 March 2020. However, considering concerns expressed by the applicant’s migration agent in an email to the Tribunal on 17 March 2020 and the spread of the COVID-19 pandemic, the scheduled hearing was postponed.
On 21 September 2020, the Tribunal wrote to the applicant through his migration agent inviting him to attend a rescheduled hearing by video-conference on 7 October 2020.
Pre-hearing Submissions
The applicant submitted medical reports from his doctor at [a named] Medical Centre dated 15 July 2019 and 15 March 2020 stating that the applicant was being treated for sleep disturbance and depression, exacerbated by loneliness and separation from his family and anxiety about his hearing.
On 30 September 2020 the applicant’s migration agent provided to the Tribunal a submission in support of his claims. In it the agent posited that the applicant feared serious harm in Pakistan for reasons of his religion (practising Shia Islam) and imputed political opinion (holding imputed political opinion against the Taliban).The submission contained online links and extracts of generic country information and media reports regarding targeting and killing of Shias by terrorist groups in Pakistan, the security situation in Pakistan and impediments to state protection and relocation for the applicant. Copies of recent media reports regarding Sunni attacks on Shia in Peshawar, Khyber Pakhtunkhwa province, Quetta and Karachi were also submitted. The submission did not specifically identify how the country information or media reports related to the individual circumstances of the applicant.
The hearing
On 7 October 2020 the applicant appeared before the Tribunal by video-conference (by Microsoft Teams) from the premises of his migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant’s migration agent also attended the hearing.
Noting the medical reports submitted by the applicant that he was being treated for sleep disturbance and depression, at the start of the hearing the Tribunal confirmed with the applicant that he was fit to participate in the hearing.
The Tribunal discussed with the applicant his background in Pakistan, his reasons for leaving and why he fears returning there. Where relevant to his protection claims, the applicant’s evidence to the Tribunal is referred to below.
At the applicant’s request, the Tribunal attempted to take oral evidence by telephone from two witnesses in Pakistan, identified respectively as the [Office Bearer 3] and Secretary of [Shia Organisation 1] in [Subdistrict 1], Jhelum with limited success. The first witness did not answer the call. The second witness answered the call and was sworn in. He identified himself as the Secretary of [Shia Organisation 3]. However, after a brief conversation in which the Tribunal asked him to explain what his organisation did, the call dropped out and a return call went unanswered. As discussed with the applicant, however, the Tribunal has considered written statements from both witnesses as provided to the Department (paragraph 7.f refers).
At the request of the applicant’s migration agent, the Tribunal granted an extension of time until 21 October 2020 to provide post hearing submissions. On 20 October 2020 the migration agent sought a further extension for submissions until 26 October 2020 on the ground that the applicant was ‘listening the hearing recording to check whether there are any interpretation errors’. As there had been an inadvertent delay on the part of the Tribunal in providing the hearing recording to the applicant, the Tribunal granted a final extension for submissions until 26 October 2020.
Post-hearing submissions
On 26 October 2020 the applicant’s migration agent provided to the Tribunal a copy of the applicant’s divorce certificate and a previously submitted letter from his doctor dated 19 September 2016 (paragraph 7.h). On 27 October 2020 he submitted a letter from another doctor dated 25 October 2020 stating that the applicant was being treated for depression and anxiety and that his efforts to get permanent residency was another major stressor in his life.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves 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).
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.
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.
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
In summary, the applicant’s key claim is that he fears serious harm in Pakistan from the Sunni extremist groups SSP and/or LEJ for reasons of his Shia religion and promotion of Shia activities and his imputed political opinion of opposition to Sunni extremists and the Taliban.
The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard his vague, inconsistent and implausible evidence on key aspects of his claims and other reasons detailed below.
Targeting by Sunni extremist group SSP/LEJ as a Shia Muslim and activist

The applicant claims that while living in Pakistan he was targeted by Sunni extremists from SSP and LEJ because he belonged to the Shia sect and was active in promoting the Shia faith and Shia activities, including organising the Muharram functions, as [Office Bearer 2] of the [Shia Organisation 1] since 2004 or the [Shia Organisation 2]. The applicant claims that, as a result of these activities, he received threatening calls, pressuring him to leave his sect or his organisation and to join the Sunni sect or organisation; and that people he believed to be SSP/LEJ shot at him on several occasions while he was travelling on a motorcycle.
The applicant told the Tribunal that he fears returning to Pakistan because he is ‘100% sure’ he will be killed by the same Sunni extremists who threatened and attacked him previously and also attack his family as there is no safety or security in Pakistan and the police are no good.
The Tribunal accepts that the applicant is a Shia Muslim and may have, with others in the Shia community, participated in organising Muharram functions. Due to multiple inconsistencies in his evidence, however, the Tribunal is not satisfied that he was [Office Bearer 2] or a high profile activist of any Shia organisation, nor that he was targeted by Sunni extremists for this reason.
In his written claims the applicant identified himself variously as [Office Bearer 2] of the [Shia Organisation 1] and the [Shia Organisation 2]. Three documents from the [Shia Organisation 1] office holders identified him as the [Office Bearer 2] of that organisation as late as November 2014. In his evidence at hearing, however, it was unclear whether he was referring to two distinct formal organisations or to the Shia community in general. Asked if he had a formal role with either organisation, the applicant said he had been [Office Bearer 2] of [Shia Organisation 2] for a while. However, he resigned in 2009 when the problems started because they needed people available there.
The applicant gave contradictory evidence as to when he first received threatening calls from the Sunni extremists. In his statement of 2 September 2015 and at hearing he said they started calling him in 2009 and said they demanded that he leave his sect/organisation and join their sect/organisation, which he refused to do. However, according to his undated statement submitted to the Department (paragraph 6.b), these threats were directed against him and his father when, having completed his education, the applicant started assisting his father, then [Office Bearer 1] of the [Shia Organisation 1]. Given the applicant’s evidence at hearing that he finished high school in 1992, that his father died in 2004 and that he worked for a [business] in Rawalpindi for 3 years before returning to Jhelum in 2005, these threats must have started back in the 1990s.
The Tribunal is also concerned that when the Tribunal sought clarification as to whether the Sunni extremists demanded that the applicant shift from the Shia to the Sunni sect or from his Shia organisation to the Sunni LEJ/SSP, the applicant introduced a new claim that they wanted him to join in LEJ/SSP terrorist activities. He said the Sunni extremists targeted for recruitment into their organisation “known persons” who were Shia activists. This was why they picked him as he was very committed to the Shia cause.
The applicant also claimed at hearing that he was shot at while travelling on a motorcycle in Pakistan in October 2010 but escaped. However, he provided no evidence of this incident, nor that he ever suffered serious harm while living in Pakistan before coming to Australia, including after the threats by the LEJ/SSP were made against him in the 1990s or 2009, nor in the seven months between this alleged incident and his departure for Australia in May 2011. The Tribunal also doubts that the applicant would have returned to Pakistan on three occasions in 2012 and 2014 if he was genuinely in fear for his life. It also notes that the applicant made no claims that he was harmed in any way during his first two return visits to Pakistan in 2012 and early 2014.
The Tribunal has considered the applicant’s claim that he was shot and injured by SSP/LEJ extremists while travelling on a motorcycle with his [relative] during his last visit to Pakistan in late 2014 but finds it implausible. In his account of the incident at hearing the applicant described the assailants as ‘unknown persons’ who had ‘covered faces’ and said that they did not speak to him but disappeared after the bullet hit the tyre of his cycle and injured his left ankle. The Tribunal finds speculative the applicant’s assertions that he was sure his assailants were from the SSP variously, because he was attacked, that it was reported in the FIR and because the SSP knew that he was in Pakistan as their intelligence system was so strong.
The various inconsistencies in the applicant’s evidence about the alleged attack, including about the timing and circumstances in which it took place, raise further serious doubts that the alleged incident occurred at all. The applicant told the Tribunal that the attack occurred [in] December 2014 when he was returning to his village from [Town 1], where he had been shopping for his sister’s children. This is also the date given in the FIR for Case [number] which the applicant submitted to [Police Station 1] about the incident on that date (paragraph 7.c); the medical certificate from Punjab Health Department reporting his injuries (paragraph 7.b); and his statement submitted to the Department on 27 September 2016 (paragraph 8). He also told the Tribunal that he met with [Shia Organisation 2] [in] November 2014, because he wanted to find out what was going on and whether the situation had improved. However, he made no mention of any attack.
By contrast, in his statement dated 2 September 2015, the applicant said he was fired upon and injured by Sunni extremists when travelling with a friend after a meeting of the [Shia Organisation 1] group, whose help he sought to trace his family (paragraph 5.c). According to the documents from the organisation submitted by the applicant, that meeting was held [in] November 2014 (paragraph 7.d) and the attack on him was registered as Case number [number] at [Police Station 2], Jhelum [in] November 2014 (paragraph 7.f).
The Tribunal has had regard to various documents provided by the applicant to support his claims about this incident, including the FIR, medical report from the Punjab Health Department and three documents from the [Shia Organisation 1]. As discussed with the applicant at hearing, DFAT’s assessment is that document fraud is widespread in Pakistan, particularly in those forms of documentation not issued by a competent central authority and written by hand, such as FIRs.[1] The Tribunal further notes that the FIR which the applicant submitted states that it is based on the verbal report of the applicant (paragraph 7.c). Moreover, the ‘Brief History’ note in the certificate from the Punjab Health Department that the applicant was ‘beaten by some religious person’ (paragraph 7.b) is information which must have been provided by the applicant. Moreover, the Tribunal is concerned about inconsistencies between the applicant’s evidence and documents from several leaders of the [Shia Organisation 1] discussed at paragraphs 34 and 39-40. In light of the above - as well as its concerns about the credibility of other material submitted by the applicant and his general credibility – the Tribunal does not attach weight to these documents.
Harm as a Shia Muslim and other issues
[1] DFAT, DFAT Country Information Report Pakistan, 20 February 2019, p.71
The Tribunal has also considered, but is not satisfied, that there is a real chance that the applicant will be restricted from practicing his religion or suffer serious harm on the basis that he is a Shia Muslim if he returns to Pakistan now or in the reasonably foreseeable future. While Sunni extremist groups in Pakistan, including SSP/LEJ, have intermittently attacked Shia religious gatherings and shrines and targeted high profile Shia individuals, there is general agreement among independent sources, including DFAT, that sectarian violence has reduced significantly since 2014, when the Government began implementing various anti-terrorist operations, including Zarb-e-Azb, Radd ul Fasaad and the National Action Plan. Overall DFAT assesses as low the risk of generalised and sectarian violence for most Shias in Pakistan and even lower in the applicant’s home province of Punjab, although high profile Shias face a moderate risk of violence, as they are more likely to be targeted. DFAT’s assessment is that with the exception of the Ahmadi and Hazara communities, Pakistanis are generally able to practice their religion without official interference or discrimination[2]. In light of this information and, as the Tribunal has not accepted above that the applicant was ever a high profile Shia in Pakistan, the Tribunal is not satisfied that the applicant faces a greater risk of harm for reasons of his Shia faith than other members of the Shia Muslim community in Pakistan.
[2] Ibid., pp.18-19, 34-37
The Tribunal has examined the materials provided by the applicant’s adviser about the security situation and sectarian violence against Shia Muslims in Pakistan, including by ISIS and the Taliban. There is no persuasive evidence before the Tribunal to suggest that this form of violence is faced by the applicant personally. The Tribunal is not satisfied that the general security situation in Pakistan would expose the applicant to a real chance of persecution for reasons of his religion or political opinion, as claimed.
Based on letters from the applicant’s doctors provided to the Department and the Tribunal, the Tribunal accepts that he has been treated for depression and anxiety due to uncertainty related to his immigration status. The Tribunal has considered the statement of one of his doctors that the applicant has faced very significant persecutions in Pakistan because of ongoing terrorism in his region and faces death threats; that his family in Pakistan is constantly under threat and that his inability to contact them for extended periods of time makes his anxiety and depression much worse. The Tribunal does not attach weight to these assertions as they could only be based on the account of the applicant, which the Tribunal does not accept as true based on its credibility findings discussed elsewhere in this decision.
Family in Pakistan
The applicant’s evidence about his family in Pakistan was vague, inconsistent and implausible. In his Protection visa application form, the applicant stated that he had a wife, identified only by her first name [Ms A], whom he married in 2004, and [number of children]. However, when asked at the start of the hearing what family he had in Pakistan, the applicant identified his mother and [number of siblings], living in Jhelum and his [age] year old brother, working in the [military] in Hyderabad. He told the Tribunal that his father had died seventeen years earlier (2003). Asked if there was anyone else, the applicant said he had [uncles] and their families in Pakistan and a brother in law in [Country 1].
Later in the hearing, however, when speaking about threatening telephone calls he allegedly received in 2009, the applicant said the caller told him that they would not spare his family – his wife and children. Asked why he had not mentioned them earlier, the applicant claimed disingenuously that he answered the questions he was asked. The applicant said his wife’s name was [Ms A] but could not remember when he married her: saying ‘maybe 2009’. However, later in the hearing, after telling the Tribunal that his eldest [child] was [age] or [age] years old, he shifted his evidence to say that he married her ‘perhaps in 2000’. As for the ages of his other [children], he said he did not remember but that there was a one year gap in between them.
Even if the Tribunal were to accept that the applicant is married and has a [age] or [age] year old son (presumably born in [year] or [year]), given that he has been living in Australia since [May] 2011 the Tribunal is dubious that he could have [other children] born a year apart. The Tribunal notes that, while the applicant travelled to Pakistan in 2012 and 2014, according to his evidence, the sole purpose of these visits was to try to find his family but he only succeeded in doing so on his last visit in 2014, when he was able to meet them briefly on 29 November 2014 at the home of his wife’s sister in Islamabad. The applicant said he had not been able to contact them since and did not know where they were.
In light of the applicant’s confused evidence regarding the date of his marriage and the ages of his children, and in the absence of any documentary evidence, the Tribunal is not satisfied that the applicant was ever married or had children in Pakistan, as claimed.
The Tribunal therefore does not accept the applicant’s claim that, although he does not know where his family is, ‘they’ (the extremists) could locate them and pressure them to force him to return to Pakistan.
Visa for Australia, bogus marriage, Delay in lodging Protection visa application
By his own evidence, the applicant entered into a bogus ‘paper marriage’ with a woman, whom he said was from a poor family in order to come to Australia as a dependent on her Student visa, as arranged by a student consultant in Pakistan. This suggests that the Nikah Nama (marriage certificate) he provided for the purpose of obtaining his visa (paragraph 7.g) was also bogus. He claimed that he had been trying to leave Pakistan since 2009, when he started receiving threatening calls from Sunni extremists in, variously on the advice of his family (paragraph 5.b) or his Shia sect or organisation (6.d) but had been unable to obtain a Student visa in his own right as he could not pass the IELTS test.
At hearing the applicant maintained that he had nothing to do with organising the Student visa, which was arranged and paid for by the Shia organisation. He claimed that all he had to do was to provide his passport and identity card, only learned that he was travelling as the woman’s bogus husband when he met her at the airport when leaving Pakistan and did not know how long his visa was valid for. He told the Tribunal that they went their separate ways at Sydney airport and that he never met her again until 2015 when she divorced him because she wanted to marry someone else. However, when the Tribunal queried how, when the first visa expired on 19 December 2012, he was able to obtain his second visa, which was valid until 24 September 2015 (paragraph 7.a), the applicant shifted his evidence to say that he was in phone contact with his bogus wife and paid $1000 or $2000 for the visa.
The Tribunal’s reservations about the genuineness of the applicant’s protection claims are compounded by his delay in lodging his Protection visa application. As discussed with the applicant, the Tribunal considers that, if he had seriously been in fear for his life when he came to Australia in May 2011, he would not have waited four years before lodging his Protection visa application; nor would he have returned to Pakistan on three occasions. The Tribunal finds unpersuasive the applicant’s various explanations for the delay, including that he only intended to stay in Australia until the situation in Pakistan improved and only decided not to return there after the attack on him by Sunni extremists during his last visit home in 2014; and that he only learned about Protection visas when his bogus wife divorced him in 2015. Given that he engaged a migration consultant in Pakistan to assist him to obtain a Student visa by fraudulent means, the Tribunal finds it dubious that they would not have discussed various other migration options. As discussed with the applicant, it is the Tribunal’s view that the reason he applied for a Protection visa on 1 September 2015 was that his Student visa was due to expire later that month and his bogus wife was not going to include him in any further visa applications.
While the applicant responded that his claims were truthful, the Tribunal has serious doubts about the applicant’s veracity and general credibility. By his own evidence, he came to Australia on a dependent Student visa obtained on the basis of a bogus marriage and obtained a second Student visa under the same false pretences. As discussed with the applicant, given his readiness to provide false evidence for the purpose of obtaining a temporary visa, the Tribunal considers that he would have no hesitation in doing so to acquire a permanent visa.
Summary Findings
Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Pakistan and the reason he fears harm there or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant was ever a Shia activist or held a high profile role in any Shia organisation in Pakistan, including the [Shia Organisation 1] or the [Shia Organisation 2]. It does not accept that he was threatened, shot at or injured by Sunni extremists from the LEJ or SSP as a result of these activities, at any time before he left Pakistan in 2011 or on his return visits in 2014.
It follows that the Tribunal is not satisfied that there is a real chance that the applicant will be specifically targeted, killed or harmed by these or other Sunni extremists for the above reasons; nor because he is a Shia or for any other reason. In the Tribunal’s view, the applicant fabricated these claims in order to achieve an immigration outcome.
Nor does the Tribunal accept that the applicant had a wife and [children] in Pakistan with whom he lost contact as a result of the threats against him by Sunni extremists, or that the extremists will locate them and pressure them to force him to return to Pakistan.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Pakistan the applicant will suffer serious harm amounting to persecution for reasons of his religion as a Shia Muslim, a Shia activist, office holder of a Shia organisation involved in Shia activities, from an activist Shia family or for his imputed political opinion as an opponent of Sunni extremists, for holding imputed political opinion against the Taliban or for any other reason set out in s.5J(1)(a) of the Act. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution should he return to Pakistan now or in the reasonably foreseeable future.
Complementary Protection
The Tribunal has also considered the applicant’s claims under the complementary protection criterion. The Tribunal has not accepted the applicant’s claims that he will be harmed or killed by Sunni Muslim extremists for reasons of his Shia sect, his alleged activism or high profile role in Shia organisations. The applicant’s migration agent has also submitted that the applicant will face significant hardship, including degrading and inhuman treatment to practice his religion and will be seriously harmed because of his religious belief if he returned to Pakistan. However, in view of country information referenced at paragraph 42 regarding the security situation for Shias in Pakistan, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.
CONCLUSIONS

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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 cauSSP, 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 cauSSP, 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 purpoSSP 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 purpoSSP 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 purpoSSP of paragraph (4)(b), the following are instances of serious harm for the purpoSSP 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 purpoSSP 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 purpoSSP of this section.
5L    Membership of a particular social group other than family
For the purpoSSP 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 purpoSSP 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.
…

states as follows:

Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. … More broadly DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common.

[2020] AATA 5558

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