1701056 (Refugee)
[2019] AATA 3866
•21 February 2019
1701056 (Refugee) [2019] AATA 3866 (21 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1701056
COUNTRY OF REFERENCE: Pakistan
MEMBER:Susan Hoffman
DATE:21 February 2019
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 21 February 2019 at 2:43pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – family involvement in religious activities – threatened and attacked by Sunni groups – threatening phone calls – family no longer involved in activities linked to threats – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 4 September 2014. He was interviewed by the delegate on 8 June 2016 who, on 24 November 2016, refused to grant the visa.
The applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. He did not have a representative.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
10. The issue in this case is whether or not the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background, protection claims and the delegate’s decision
11. The applicant claimed to be born on [date] in Gujrat City, in the Punjab Province of Pakistan. The applicant provided the Department with documentation to ascertain his identity and the delegate accepted that the applicant’s name is [as claimed].
12. The applicant arrived in Australia [in] May 2014 on a student visa which was subsequently cancelled by the Department on the basis that he failed to start his studies. The applicant lodged his claim for a protection visa on 4 September 2014.
13. In a statutory declaration dated 3 September 2014, the applicant made the following claims.
· He is a Pakistani national who is a Shia Muslim, born [date] in Gujrat city, Punjab province in Pakistan. He lived with his parents and brother and sister.
· He obtained a [Qualification 1 in Field 1] in Pakistan in [year]. He worked [for a company] in Gujrat for a year, then went to work in his father’s [businesses].
· The applicant claimed that his mother was well known [in Occupation 1]. He stated that his mother has never been threatened as he believes the militant group do not harass women.
· The applicant claimed that his brother was involved in helping community leaders during functions in Moharram.
· The applicant claimed that he was threatened and/or attacked by Sunni groups on two occasions because he was Shia which is the reason why he left Pakistan for Australia.
· The first incident happened in about October 2013. He and his brother were on the street in front of the main mosque in [City 1]. It was sunset but still light. Three young men about [age] years old on a motor bike stopped in front of them. The men did not address the brothers by name but did threaten them, telling them to stop what they were doing to do with religion else the men would kill the applicant and his brother. They had an angry confrontation, then the men left.
· The applicant said that he had not seen these men before. They went away, he was frightened and went home and told his father about the incident.
· The applicant’s father told him he had received verbal threats from members of a militant religious group Sipah e Sahaba that they would kill his sons because they were members of the Shia community.
· The applicant’s father told him that [military] people from that group went to his shop recently but he did not report it to the police as he was too frightened’ He did not tell the applicant or his brother about what had happened as he did not want to worry them. They were confused and did not go to the police as they did not think the police would do much.
· Other Shia Muslims in their town have been killed. In 2013 a well-known professor at the University of Gujrat, Syed Shabir Shah, was shot and killed. ([details deleted].) A man called Syed Fazilat Shag was also shot and killed. As far as the applicant knows, no-one was ever arrested for these killings.
· [In] November 2013, at about 7 pm, he and his brother and a third man, [Mr A] were walking down the main street close to the Imam Bargah where the Shia pray. This was the main mosque referred to earlier. [Number] men on [motorbikes] came past and called out the applicant’s name. He did not know how they knew his name but maybe he was the one who was most vocal at the confrontation in October 2013. It was dark but there were street lights and he could see them. Three of the men got off the motorbikes and the applicant recognised them as the men who had previously threatened him and his brother. Two of them men had bigguns and on of them had a small gun. They said that they were going to teach the applicant and his brother a lesson, and fired two or three shots at them. The applicant, his brother and [Mr A] ran and hid behind a wall at the mosque. The shots missed them but they were frightened.
· The applicant went home and told his father, and they went to the police station where his father made a report. He did not know where [Mr A] went. The applicant did not know the men personally although he recognised two from before. He gave a description of the men to the police who said that they knew who these men were, and they were wanted by the police. The police said they would look for the men but did not find them. He did not see these men again.
· The police report stated that the applicant’s father was with the brothers when they were shot at but that was not the case; he went to the police station with them.
· He believes he was targeted because of his family’s involvement in the Shia Muslim religion especially because of his mother’s [Occupation 1] and his brother’s involvement in [his occupation]. He believes that his father was not targeted because Sipah target younger males rather than the older generation.
· The applicant’s father was worried because of the shooting and said the brothers had to leave Pakistan. He made arrangements for the brother to go to [Country 1]. The applicant was sent to hide at his uncle’s house because it was too dangerous for him to go out onto the streets, as his was the name that the men called out. His uncle’s home was about [number] kilometres from the applicant’s family home and he stayed there until he left Pakistan for Australia. When he was at his uncle’s house, he never left it and did nothing.
· Arrangements were made for him to come to Australia to study and he had always wanted to pursue further studies in [Field 1].
· His mother is not [employed in Occupation 1] anymore because of the incident. His brother is not doing [studies] in [Country 1].
· The applicant fears going back to Pakistan as he fears he will be killed there. He cannot live anywhere else in Pakistan as Shias are treated the same everywhere and the militants will know where he is because of the family’s involvement in the religion.
· He will have no freedom as he will be unable to practise his religion.
· It is hard to find work in Pakistan, even for a person with [Qualification 1] in [Field 1]. If he goes to another area in Pakistan, he will have nowhere to live and no support from his family. He will be at risk of harm.
14. The applicant submitted a police report in Urdu and an English translation of that document in relation to the November 2013 incident.
15. The delegate recorded that the applicant’s student visa was cancelled as he as he failed to commence his studies. The delegate noted concerns with the credibility of the applicant’s claims and was not satisfied that he had been targeted by Sipah e Sahaba, or any other group. The delegate did not accept that the applicant’s fear of persecution on the grounds of his Shia religion was well-founded as that was not supported by country information.
Findings and reasons
16. The Tribunal has considered the evidence before it, including the sworn evidence of the applicant and the documents he submitted to the delegate. The Tribunal acknowledges the difficulties faced by an applicant in a formal hearing, giving evidence through an interpreter, and recalling events from years past. The Tribunal also took into account that the applicant said that he had not received any legal advice in relation to the hearing. Broadly, if an applicant’s account is credible, the Tribunal will extend the benefit of the doubt with regard to specific claims the applicant cannot substantiate. At the same time, the Tribunal is also required to test the evidence and critically evaluate it. There is the possibility that details can be embellished to strengthen a claim, even when the Tribunal is satisfied that the applicant is generally credible.
17. At the beginning of the hearing, the applicant said he would give evidence in English and just use the interpreter if needed but within a couple of minutes of the start of the hearing he said he wanted to give evidence using the interpreter all the time which was what happened.
18. The applicant’s evidence given at hearing was generally consistent with his statutory declaration and what he told the delegate although the Tribunal had doubts about the credibility of events the applicant claimed have happened recently.
19. Asked why he feared going back to Pakistan, the applicant said that the biggest issue is with security. In the past, several people have been killed in terrorist acts and incidents.
20. The Tribunal asked the applicant about the incident in October 2013. He said that his brother and he were going to prayers at the mosque when two people on one motorbike stopped them.
21. He said at that time there were not many people about. The men approached them head on; that is, the motorbike was coming towards them. He said it stopped about two feet from him and his brother. The motorbike approached at speed and suddenly stopped. The applicant said this happened about ten feet from the main gate of the mosque. Asked if he had any sense of how fast the motorbike was going, the applicant said maybe 32 to 40 kilometres an hour. He said that as the motorbike approached he was not worried as he thought it was travelling normally but it suddenly changed direction and came towards them.
22. The applicant said that after the men threatened him and his brother, and he challenged them about stopping him and his brother and saying what they said, the men left.
23. He said that one of the men told them if they did not stop what they were doing like attending prayers and so on, the men would kill them.
24. The applicant said after this incident he and his brother were very scared and they went into the mosque for prayers. They did not tell anyone in the mosque what had happened. When asked if other people were close enough to see what had happened or overhear what was said, the applicant said there were not that many people about.
25. When asked why he thought he and his brother in particular were targeted, the applicant said it was because they are a Shia family and because of his mother’s involvement in the Shia community.
26. The Tribunal asked if the family was prominent in the Shia community. The applicant said his mother was very heavily involved in the community [for] Shia woman [details deleted]. She was well known in the community.
27. When asked if other women were doing what his mother was doing, the applicant said there were other women involved but they were not doing as much as his mother. The Tribunal asked if when the men stopped him and his brother, they said anything about his mother or her involvement in the Shia community. The applicant said they did not mention anything about his mother.
28. The applicant also referred to his brother’s involvement in the Shia community. The Tribunal understood from his answer that the men he claimed attacked him did not say anything about what his brother was doing in any specific way. The applicant said that given they were brothers and because of what his mother was involved in, he would help his mother and brother with their activities. So he was also involved in the Shia community and it was because of that, he with his brother and his mother became targets.
29. The Tribunal asked the applicant if the men who confronted them gave a specific reason as to why they stopped them. The applicant said that their aim was to threaten them and warn them. The Tribunal asked again to try and ascertain whether more specific threats had been made, or reasons given as to why the threats were being made. The applicant repeated that what they were told was to stop whatever activities they were involved in.
30. Given how vague this was, it allows for the possibility that the applicant and his brother were picked on because they happened to be outside the mosque at that time, rather than being personally targeted. That is, they were targeted because they were Shia rather than because they were known to the attackers.
31. The applicant said that when he got home, he told his father about what had happened. The applicant then referred to an incident included in his statutory declaration; that two or three men from Sipah went to his father’s shop and told his father he needed to stop the religious activity or the men would kill his two sons.
32. The applicant said the incident at his father’s shop happened about two weeks before the incident involving the applicant and his brother outside the mosque.
33. Asked if he was aware of other things like this happening to other members of the Shia community at the time, the applicant said that he was not. He referred to the university professor who was killed in 2013 as mentioned in his statutory declaration, and that other people of the Shia faith were killed.
34. The applicant said that his father, after being threatened in his shop, was fearful and did not want his family to know what was going on as he was worried for them.
35. About the incident that happened in November 2013, the applicant said it was similar in that it was him and his brother, and a friend of his brother, who was stopped as they were going towards a mosque. This time there were [mountain] bikes each with [number] riders on them. They stopped at a distance and yelled out “[variation of applicant’s first name] and all your followers, we will teach you a lesson” and then they fired three shots in the direction of the applicant, his brother and the friend, who then hid behind a wall in the mosque.
36. The applicant said that at the time, some vehicles had lights on and some did not. It was not particularly dark, although the street lights were on. There was enough light to see the men.
37. The applicant said that the men approached them from the front, then stopped and yelled at them. They did not get off their bikes. The man at the front remained seated and the man in the pillion seat took out the weapons and fired at them. The applicant said that he recognised two of the men as the same two who were involved in the incident the previous month.
38. The applicant said the two men he recognised were on different bikes to each other and both had guns in their hands. They both fired at him and his brother; one had a [specific gun] and the other a normal handgun. He said he remembered three shots were fired. When asked if he thought the shots were fired to scare them or to kill them, the applicant said after he, his brother and their friend ran off, the men did not have the opportunity to fire more shots. The applicant said that he and his brother and friend were shot at directly and they were lucky to get away and he believed the intention was to kill them.
39. The police statement referred to earlier which the applicant provided named three of the people involved in November 2013 incident. The applicant said that the police worked out who the men were from their appearance and connected these men to previous incidents.
40. The Tribunal asked again why the applicant in particular was targeted when he was part of the Shia community and was there any other reason why he or members of his family would be targeted in addition to what he had already said about what his mother and brother had been doing in relation to the Shia community. The applicant said that his family were quite significant within the Shia community. He also said that was a majority Sunni population in the area where they lived, and they targeted Shia Muslims as they did not want them to get recognition.
41. The applicant also said that it was possible the manner in which he spoke to the man during the October 2013 incident may have been a factor in why he and his brother and the friend were targeted the following month.
42. The applicant said that in Pakistan, a minority group like the Shia was not provided with protection. He said his life would be threatened if he was to return to Pakistan. The Tribunal asked if he belonged to another group or ethnicity of which the Tribunal was not aware. The applicant said that he belonged to the Arain tribe. When asked if belonging to this particular tribe was relevant in terms of his protection claim, the applicant said no; it was belonging to the Shia religion that was a problem for him.
43. The Tribunal located country information about Arains which records that they are believed to be descended from Arabs who invaded the Indian subcontinent as far back as around 700CE and are generally Sunni Muslims. They settled mainly in the Punjab area of Pakistan and also in India, as well as in other parts of the world. As the applicant stated that being from the Arain tribe was not relevant to his protection claim, the Tribunal will not consider it any further.
44. The applicant said that at the delegate’s interview, he did not understand the interpreter properly and some statements in the delegate’s decision were incorrect. The Tribunal asked him to identify any mistakes.
45. The applicant clarified that he had a [Qualification 1] in [Field 1] and not a degree. He said he had not attended university but went to a college.
46. The applicant also wanted to clarify something in the delegate’s decision, although the Tribunal did not see inconsistencies between what he was saying and what was recorded in the delegate’s decision. The applicant said that when he first arrived in Australia, he did three months of basic English and he got a mark of 53% and 80% attendance and he thought he had passed as 53% was a pass mark, but he said to meet the criteria to pass the course he had to do an extra week and he did not do the extra week. He said that during the time he was studying and after he was studying he was working. He said that he had not done any studying since doing that English course.
47. When asked if he understood that when he was in Australia on a student visa, he was supposed to study, the applicant responded that he wanted to study. He said his father sent him to Australia for safety and he wanted protection in Australia.
48. The Tribunal asked what happened in the period between November 2013, which was when the second incident occurred, and May 2014 when the applicant came to Australia.
49. The applicant said that during this period, his father started to make arrangements for him. The applicant stayed at his uncle’s house and remained hidden there for safety reasons. During the six-month period he did no work, and he did not go to a mosque. He said he did not leave his uncle’s house for the six months he was there and if he needed anything, his uncle or his father would arrange that. He said during this period his brother went to [Country 1].
50. The applicant said that he did not know exactly what his father was doing but thought he decided on Australia about two months later as a suitable destination for the applicant because it was safe and for the educational opportunities. His father then started making the arrangements and spoke to an agent to get the visa application prepared. The Tribunal accepts the applicant’s evidence that the decision to come to Australia and making the arrangements for it were very much his father's idea rather than the applicant’s.
51. The Tribunal asked the applicant about his father’s situation. He said his father had owned a [specified] shop and a commission shop. He explained a commission shop thus: his father supplied goods for which he was paid a commission. He said his father was no longer in business. The shop was owned by his father and his brother and after the brother left the country, his father could not run it by himself as he was too old. The businesses closed. The applicant said his father and mother and sister still live in the family home where he was raised in the Punjab.
52. The applicant claimed that when he speaks with his parents, they do not necessarily tell him what is going on. He talks to his sister about two or three times a month, and she has told him that the family home gets pelted with stones and there are threatening phone calls with people asking about the whereabouts of the applicant and his brother. He said the last time his sister told him about an incident at the house is about three months ago when she told him about threatening phone calls that his family had received.
53. The Tribunal observed that most of the evidence the applicant gave at hearing was consistent with the statutory declaration he provided when he first lodged his application for a protection visa and with what he said at the delegate’s interview.
54. However the first time he mentioned stones being thrown at the family home and his father receiving threatening phone calls was at the hearing. If the reason that he had not mentioned them in his statutory declaration or at the delegate interview was that these were recent phenomena, the Tribunal would have expected him to raise these issues at an earlier stage in the hearing because of the significance to his protection claim. The applicant spoke of these only when asked by the Tribunal if there had been any incidents since he left Pakistan. The applicant by this stage in the hearing had raised other matters he considered important. The Tribunal does not place great weight on the applicant not raising this until prompted, in isolation from other considerations that call into his question his credibility regarding events he claimed have occurred in recent times.
55. The applicant said that the people making the threats do not know that he and his brother are no longer in the country which is why they call. The Tribunal observed it seemed an obvious thing for his parents to do was to tell the people on the phone that the sons are no longer in Pakistan. The applicant said that maybe they do not want people to know that he is in a foreign country. The Tribunal does not consider it credible that if the applicant’s father had been receiving threatening phone calls about his sons in recent times, he would not tell the callers that his sons had left the country.
56. Further the Tribunal considers that if the applicant’s parents had been receiving phone calls recently that threatened the applicant, they would have told him about them to warn him not to come home.
57. Putting these three factors together – that the applicant’s parents did not inform the applicant about the phone calls to warn him not to return, that the applicant’s parents did not tell the callers the applicant and his brother were overseas which may well have put a stop to the calls, and that the applicant failed to mention something so critical to his claim earlier in the hearing – the Tribunal does not accept that threatening phone calls were made to his parents about the applicant after he left Pakistan, including within the last three months or so. It also does not accept that the applicant’s parents’ home was stoned and finds that this claim was fabricated to strengthen the applicant’s protection claim.
58. The Tribunal is not satisfied that there is any credible evidence of any group or person having an ongoing interest in the applicant in the sense of wanting to do him harm.
59. When asked how his father was supporting his mother and sister, if he was no longer working, the applicant said that he and his brother (the brother is now in [Country 2]) work and send the money to help them get by. Asked if his parents rely on what he and his brother send them, the applicant said yes because all they had was spent on sending him to Australia and making arrangements for him and his brother to go somewhere safe. He said his father sold the businesses and the proceeds went to pay off debts. Therefore his parents rely on the applicant and his brother. The applicant said that he is currently working [in a specified occupation].
60. Because his father sold his business to send his sons overseas and now relies on them to support him and his wife and daughter in Pakistan, that is a strong motivation for the applicant to want to remain in Australia.
61. The Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm if he was to return to his home area of Pakistan in the foreseeable future. The Tribunal accepts that the incidents he spoke of from 2013 occurred as he said. However that is over five years ago and the security situation in Pakistan has improved significantly since that time.
62. The Tribunal accepts that the applicant may have had a particular profile in 2013, by virtue of his mother’s and brother’s activities, that was higher when compared with other Shia Muslims who were not involved in [Occupation 1], as the applicant’s mother used to do. The Tribunal does not accept that while the applicant may have had a raised profile compared to others at that time, it could have been characterised as being a high profile. Further the Tribunal does not accept that the applicant currently has a profile that sets him apart from other Shia Muslims in his community, for the following reasons. The applicant’s brother is no longer in Pakistan, his mother no longer [works in Occupation 1], and over five years have elapsed since the incidents that took place in 2013.
63. The applicant claimed he would not be able to practice his faith in Pakistan. The Tribunal rejects this claim as it is not supported by country information, as discussed below.
64. The applicant said that 70,000 Shia have been targeted by terrorists all over Pakistan, that Shia Muslims were targeted all over Pakistan, that the authorities cannot provide security, and kidnappings still happen in Pakistan.
65. In its country information report, DFAT assessed the situation for Shia Muslims in Pakistan as follows.[1] The Shia population is spread throughout Pakistan. Most Pakistani Shias are not physically or linguistically distinguishable from Sunnis. Shia mosques are distinguishable from Sunni mosques. Shias in Pakistan are most prominent during Shia religious events and pilgrimages to Iraq and Iran which includes the Ashura festival, during which Shia men and women parade through the streets. The Shia population in Pakistan is at its most vulnerable during large gatherings such as the Ashura procession.
[1] DFAT Country Information Report – 20 February 2019
66. DFAT recorded (at 3.96) that it has no evidence of systemic discrimination against Shias in Pakistan in gaining employment in the public service, police, military or the private sector. It noted that some Shia perceive discrimination against Shia gaining roles at higher levels of some organisations. Overall, DFAT assessed that Shia who are not Hazara or Turi do not generally face discrimination based on their religious affiliation when seeking employment. It noted that low-level anti-Shia discrimination does occur at the community level, and can manifest in violence or damage to property.
67. DFAT assessed that Shias, like people from other religions and sects, continue to face sectarian violence in Pakistan although it has declined in recent years. Information about militant groups and attacks on Shia Muslims are addressed in the DFAT report:
3.99 Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties (see Security Situation). Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.
3.100 The LeJ (see Armed Groups) has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta (see Hazaras) and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’ According to the SATP, 114 Shi’as were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with the ISIL, claimed responsibility for many of the attacks.
3.101 Travel in parts of Pakistan is dangerous for all travellers, regardless of sectarian, religious or ethnic affiliations. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure. Travellers in remote areas of Pakistan, notably Balochistan, Khyber Pakhtunkhwa and districts in the former FATA, are also at greater risk of criminal or militant violence due to their isolation and the limited presence of security forces. Many roads fit this profile.
3.102 Shi’a in Pakistan often travel to Iran and Iraq for religious pilgrimage. Militant groups have historically targeted routes used by Shi’a pilgrims, particularly through Balochistan. In 2014, militants attacked a bus on the Quetta-Taftan highway in Mastung District, Balochistan, killing at least 29 Shi’a pilgrims and injuring 35. Militants identify Shi’a by Shi’a names displayed on CNICs, or flagellation marks from Ashura ceremonies. Hazara Shi’a are more readily identifiable due to their distinctive physical appearance (see Hazaras). Shi’a pilgrims can travel by air rather than by road, but many cannot afford to do so.
3.103 DFAT understands that the Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. Military escorts can be infrequent. DFAT assesses that Shi’a pilgrims travelling by road to Iran through Balochistan without military escort face a moderate risk of violence from sectarian militants.
68. At 3.104, DFAT assessed that overall, most Shia in Pakistan face a low risk of sectarian violence and the risk can vary depending on geographic location and for members of specific groups, such as Hazaras and Turis. The applicant is not of these ethnicities. DFAT also assessed that high-profile Shia face a moderate risk of violence, as they are more likely to be targeted. The Tribunal has already found that the applicant does not have a high profile or, indeed, a profile higher than other Shia Muslims in his community.
69. At 2.69, in the section on the security situation in Pakistan, DFAT observed that while security attacks can occur anywhere in Pakistan, the security situation varies across the country. The applicant’s home is in the Punjab, where just over half the population of Pakistan, or approximately 110 million people, live (at 2.8). In 2018, the Khyber Pakhtunkhwa region reported the highest number of terrorist attacks – 125 attacks killing 196 people – and Balochistan reported the second highest at 115 attacks but the highest death toll at 354. The Punjab recorded 4 attacks killing 20 people in 2018 which was the highest decrease of all the provinces in attacks compared with 2017; a drop of 71%. In the Tribunal’s view, this suggests the Punjab is safer than other areas of Pakistan.
70. At 3.106, the DFAT report discussed anti-Shia violence in the Punjab. It stated that sectarian tensions and violence are more prevalent in the south, and in parts of Gujranwala, Sialkot and Rawalpindi. Conservative madrassas and militant groups are more prominent in the southern part of the Punjab and the Sunni and Shia communities tend to be more segregated. Shias live throughout the Punjab, including Lahore. The Sunni and Shia communities in the cities are much more integrated. The largest sectarian attack in the Punjab in 2016 targeted Christians.
71. The DAFT report states (also at 3.106), while violence can occur in any part of Punjab province, DFAT assessed that Shias in Lahore and Islamabad face a low risk of sectarian violence. This was the same assessment made in previous DFAT report dated 1 September 2017. The more recent one, dated 20 February 2019, had not been published and therefore was not available at the time of the hearing.
72. A media report from 7 January 2019 stated that in 2018 there were 262 terror attacks which killed 595 people in Pakistan. Most of the attacks were targeted at security and law enforcement agencies. The deadliest attacks took place in the run-up to the July 2018 general elections. Compared to 2017, terrorist attacks were down 29% and fatalities from terrorist attacks were down 27%. The report cites different reasons for the terror attacks.[2]
[2] The Economic Times (2019) 262 terror attacks killed 595 people in Pakistan in 2018: Report, accessed 24 January 2019 at
73. Another recent report dated 31 December 2018 stated that police foiled a major terrorist attack on 30 December 2018 planned in Karachi amid heightened security measures for New Year’s celebrations, and one police officer was killed in incident in Islamabad.[3]
[3] Gardaworld (2018) Pakistan: Terrorist attack prevented in Karachi December 30, accessed 24 January 2019 at
74. A further article referred to the security situation in Karachi. There were 34 bomb blasts in 2014, and none in 2017. Until 17 November 2018, it seemed that there might be no terror incidents in Karachi in 2018. This attack was followed by two more major terrorist attacks, one against the Chinese Consulate General on 23 November 2018 and a car blast in the Defence Housing Authority in the early hours of 4 December 2018. According to the article, separatist groups rather than religious militants were behind at least one of the incidents and the perpetrators of the others had not been identified at the time of writing.[4]
[4] Khan, F. (2018) Three terror attacks in two months mar peaceful 2018, The International News, accessed 24 January 2019 at The Center for Research and Security Studies, a think tank based in Islamabad, reported on 1 January 2019 that militancy and terrorism are on a continuous decline in settled areas of Pakistan, with 2018 being generally more peaceful than 2017. The report recorded that there were 2,333 fatalities in 2018 which dropped to 1,133 in 2018, with the greatest decline in such incidents observed in the Punjab, with a 69% drop in fatalities from 2017 to 2018.[5] (As noted earlier, DFAT reported a 71% drop in attacks year to year, whereas the 69% drop refers to fatalities.)
[5] Center for Research and Security Studies (2019) Terror Incidents Continued to Decline in 2018, accessed 5 February 2019 at
76. The applicant said that in other parts of Pakistan, where the Shia faith is followed, people are killed and people still do not have freedom. He said that groups such as Sipah e Sahaba are linked with political parties and it is not hard for them to target Shia anywhere in Pakistan.
77. In response to the statement in the DFAT report of 1 September 2017 that Lahore and Islamabad are the safest places in Pakistan for Shias, the applicant said that attacks against Shias are still happening and terrorist groups are mixed in with civilians. He asked rhetorically, how anyone could guarantee they are living there safely.
78. The applicant said that there are operations conducted by the Pakistan national army against groups including the Taliban, Sipah and Lashkar-e Jhangvi. He said that when Pakistan’s army was about to come to the Punjab, certain political parties in his area supported the terrorist groups and did not let this operation take place. He said all the terrorist groups get support from people in the Punjab area. The Tribunal was unable to find any country information that supported this view; that is, that all terrorist groups get support from people in the Punjab area. To the contrary, in June 2016 the Chief Minister of Punjab, Shehbaz Sharif, said that Pakistan Army had broken the backbone of terrorists through the operation Zarb-e-Azb.[6] On the evidence before it, the Tribunal does not accept that terrorist groups get support from people in the Punjab area such that Pakistan’s army was prevented from undertaking Zarb-e-Azb in the Punjab.
[6] The Nation (2016) Operation Zarb-e-Azb has broken backbone of terrorists: CM Punjab, accessed 19 February 2019 at About being safe in other parts of Pakistan, the applicant said this is something that is not guaranteed for Shia groups; they have been killed before. He said the terrorist groups are still active and no one can guarantee safety for the Shia groups.
80. The Tribunal notes the content of the UK Home Office’s report published in January 2019, entitled “Country Policy and Information Note: Pakistan: Shia Muslims”. In relation to Shia Muslims who are not Hazara, the Home Office report makes the following observations:
· The state religion is Islam and Shia Muslims are freely permitted to practice their faith. Shias are well represented in government and other public service sectors.
· In general, a Shia Muslim is not likely to face a real risk of persecution and/or serious harm from state actors. If discrimination does occur, it is not likely to be sufficiently serious by its nature and repetition to amount to a real risk of persecution and/or serious harm.
· Shia Muslims are regarded as apostates or heretics by some extremist Sunni groups and individuals. As a result, some face hostility and security threats from extremist groups, including the Pakistani Taliban, Lashkar-e-Jhangvi (LeJ) and LeJ’s al-Alami faction
· The majority of targeted attacks, which usually take the form of bomb attacks at Shia dominated events and venues, occurred in the tribal regions (Federally Administered Tribal Areas and Khyber Pakhtunkhwa) and Quetta, Balochistan. Reported numbers of those killed by armed groups in 2017 varied enormously, ranging from 68 to 166. This is in the context of a Shia population of between 20 and 50 million.
· Targeted attacks by armed groups continue and Shia traditionally represent a higher proportion of casualties from sectarian violence. However, overall sectarian violence against Shias has declined since 2013. In general, a Shia Muslim is not likely to face a real risk of persecution and/or serious harm from non-state actors, though the risk may vary depending on location.
· Although there continued to be targeted attacks in Shia dominated areas, these are infrequent and do not generally amount to substantial grounds for considering there is a real risk of persecution and/or serious harm. However, decision makers must consider whether there are particular factors relevant to the person which might increase the likelihood of them facing a real risk of persecution or serious harm. Each case must be considered on its facts, with the onus on the person to demonstrate that they face a particular risk.
· The government has taken steps to limit the capability of terrorist groups that target the general public as well as Shia Muslims specifically. Federal and provincial governments have provided security during Shia religious commemorations and for Shia pilgrims travelling to and from Iran although Shia organisations reported that security was inadequate and that there are sometimes significant gaps between military escorts.
· In general, the state appears both willing and able to offer effective protection to Shia Muslims, but it should be noted that state protection does not need to eliminate the risk of discrimination and violence. A person’s reluctance to seek protection does not necessarily mean that effective protection is not available.
81. The Tribunal is of the view that the applicant’s statements at hearing about the security situation in Pakistan are out of date, do not take account of improvements in recent years and therefore do not reflect the current situation. Further, as already recorded, the Tribunal does not accept that the applicant, or his family, have a profile that creates a real risk or a real chance of serious or significant harm for him should he return to Pakistan, more than four and a half years after he left that country.
82. The applicant also claimed that if he returned to Pakistan it would be hard for him to find work and if he went to another part of Pakistan, he would have nowhere to live and would get no support from his family.
83. The applicant’s home town of Gujrat has a population of over 800,000 people. The unemployment rate for urban areas in the Punjab in 2017/18 was 5.65% for males over ten years old. For males aged between 25 and 29 (the applicant is [age] years old), the unemployment rate is 4.1%.[7]
[7] Pakistan Bureau of Statistics (2018) Labour Force Participation Rates and Unemployment Rates by Age, Sex and Area 2017-18 (AUGMENTED LABOUR FORCE) – Table 16.2 Punjab accessed 7 February 2019 at
84. The applicant has demonstrated the capability to find work in Australia despite the language barrier and unfamiliarity with the Australian culture. There is no reason, in the Tribunal’s view, for the applicant not to be able to find work if he returned to Pakistan, including to his home town of Gujrat in Punjab province.
85. The applicant said that the area in which his family lived was an area with a majority Sunni population. According to his statutory declaration, his family live in [City 1]. Based on maps, it is about [number kilometres] of the centre of Gujrat. The Tribunal was unable to locate statistics specific to [City 1] about the proportion of Shia Muslims who live there. However as Shia Muslims are in the minority compared to Sunni Muslims when considering Pakistan as a whole, the Tribunal accepts that they are also in the minority compared to Sunni Muslims in [City 1]. The DFAT report at 3.106 (see paragraph 70 above) identifies areas in the Punjab where sectarian tensions and violence are more prevalent, and where conservative madrassas and militant groups are more prominent. None of these areas include or border [City 1]. On the evidence before it, including the country information, the Tribunal does not accept that the applicant has a well-founded fear of being persecuted because of his Shia faith.
86. As observed by the UK Home Office report referred to above, Shia Muslims are freely permitted to practise their faith, and Federal and provincial governments have provided security to Shia Muslims during Shia religious commemorations. The Tribunal finds therefore that if returned to Pakistan, the applicant would be able to practice his faith without facing a real chance of serious harm or a real risk of significant harm.
87. The Tribunal does not accept on the evidence that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk he will suffer significant harm. The Tribunal is satisfied that the applicant will be able to subsist as his immediate family continue to live in Gujrat and they would support him and that he will be able to find employment in due course.
CONCLUDING PARAGRAPHS
88. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
89. 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).
90. 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
91. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Susan Hoffman
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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