1708617 (Refugee)

1708617 (Refugee) [2020] AATA 2666 (25 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708617
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:25 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 June 2020 at 11:29am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – member of AWP – team leader role – religion – conversion to Shi’ism – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(H), 5(J), 5K-LA, 36, 65, 499
Migration Regulations 1994, 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 on 29 March 2017 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 14 July 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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.
Mandatory considerations
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection visa application
The applicant came to Australia in February 2015 as student, and is an ethnic Pathan born into a Sunni family. His father was a government [and] his mother owned a [business].
In June 2015 the Taliban burned down his mother's [business] because they do not want women to have any freedoms, they want to keep the women oppressed. He completed a Diploma [in] 2013.
During his study at College he joined the ANP (Awami National Party) in October 2011. The ANP is a moderate political party and always on the hit-list of the Taliban. ANP's ideology is based on secularism, democratic socialism and Pashtu nationalism which directly contradicted the views of the Taliban.
ANP also has been on the hit-list of Tehreek-i-Taliban Pakistan (TTP) and they have killed thousands of ANP's political leaders over the years. The ANP leader Asfandyar Wali Khan, the president of ANP, visited the USA in 2008. He agreed to allow the government of USA to supply NATO weapons to Afghanistan through the Torkham border of Khyber pakhtoonkhwa, Pakistan. These NATO weapons were used to kill Taliban forces which is why the Taliban became the enemy of ANP members.
His uncle [was] killed by the Taliban in a suicide attack in [Pakistan] [in] October 2014 because he was a member of the ANP. During his study in the [College] my friend [was] killed by the Taliban during an ANP meeting in my hometown. My [two other friends] were injured in the attack.
After the death of his uncle he became a close friend of [a named official] of Haripür district. He worked with him closely to promote the ANP agenda and modernisation. The applicant was also on the hit-list of Taliban, they threatened him a lot of times. There were Taliban supporters in his home village who used to come to his house and threaten his father with consequences if he remained a part of the ANP.
[In] of December 2014, he believes the same group attacked his home and opened fire on the door and walls with guns. His family was absolutely terrified and hid in the back of the house. He was in Peshawar with friends celebrating New Year when they attacked.
After these incidents he left Haripur for Peshawar to live. His family kept a very low profile for their safety. It was a horrible period of his life during 2014 until he arrived in Australia. He was chased and threatened by an unknown group of people in Peshawar at least twice during his stay there for approximately 2 months. He was scared and hid in the flat he was staying in.
After arriving in Australia he met with a few people at work. These people were from Parachinar and are Shia Muslims. He formed a good friendship with them. He had sympathy for the Shia Muslim community when he was in Pakistan because they are the most innocent people. Sunni Muslims call Shia 'kafir' and according to them they are not Muslims. Thousands of Shai Muslims have been killed in Pakistan by Sunni groups like Sipah-Sahaba Pakistan, Lash kar-e-Jhangvi and Tehreek-i-Taliban.
They are killing Shias in public places like bus stops and markets and even in the Mosques. On November 26, 2015, a group of 4-5 unidentified gunmen stormed a Shia mosque at Haripur village and opened fire on the devotees while they were offering their maghrib prayers, leaving four of them, including its muezzin, injured.
He spent some time with a few Shia friends and observed their lifestyle and he was quite inspired by them. He studied their religion and converted to Shia Islam in December 2015. As a practising Shi’a Muslim if he goes back to Pakistan he will be killed by Taliban and Sunni groups.
AAT Hearing
The applicant was asked whether he had given the Tribunal everything that he wished to provide and he said that he had. He claimed that if he returned to Pakistan he would be killed by the Taliban and the local community; the Taliban because he was a member of the ANP who ran against the Taliban, and the local community and Sunni groups operating there because he had converted to Shi’a Islam. He had no other claims.
He was asked whether he was aware of everything in his protection visa application and he knew it to be true and correct. Regarding his membership of the ANP he claimed that he became a member in October 2011 – there was a meeting in his village and the speaker affected the applicant with his views of development for his village and he joined the party. Asked what it was that attracted him to the party, he claimed that the party allowed the voice of the Pashtun to be taken to the national assembly (parliament).
He was asked what particular policies were relevant to the Pashtuns that the ANP represented and he claimed that the other parties did no development work in the Pashtun areas and didn’t offer jobs to Pashtuns. Asked if there was anything else, he claimed that there were no colleges/universities in Pashtun areas. He then said that there were some, but the Pashtun areas were relatively deprived. He was [age] years old when he joined.
His family were not political but were voting for the ANP. His uncle was political but he was killed in 2008 – he was an ANP member who was attacked and killed while attending a meeting in October 2008. Asked if it was before he joined the ANP he said it was, but then said that the Immigration Department had got the date wrong in their written decision and had written 2014 but in his statement he had written 2008. It was put to him that the member was looking at his signed statement he had submitted as part of his application and he had written October 2014. He claimed he also had the statement and it said 2008 – it was again put to him that the member had his signed statement that said [October] 2014 and the relevant section was read to him by the member. He then said he might have mistakenly written 2014 but the real date was 2008.
He was asked if he had mentioned his uncle being killed during his DIBP interview, he claimed he only answered questions he was asked but was never asked this question. He was asked if he actually had an uncle killed in a suicide attack for being in the ANP that he may have wanted to mention this without waiting to be asked, and he claimed that he was asked a lot if questions but couldn’t recall of he was asked about this.
Being a member of ANP meant that he spread awareness of the party and encouraging people to vote for the party. Asked what reasons he used to get people to vote for the ANP, he said that he told them ANP was against Taliban and radical Islam and that they would address development issues such as roads and electricity and they would defend women’s rights. Asked what he meant by women’s rights, he claimed he meant equal education, employment opportunities. Asked of there were women members of the ANP that he worked with, he stated that there was one female member out of his group of 15-20 ANP members.
Asked if he had any seniority in this group, he claimed that he was a team leader in charge of the 15-20 members from his village. Of these, only one was a woman. Asked if he did anything about empowering women to get them as members given he claimed he was attracted by ANP’s work to empower women and yet he only had one female member. He claimed having just one woman was a big success, as in their area women weren’t normally allowed to work outside the house.
Asked if he had previously mentioned he was an ANP team leader, he claimed that he had and when asked when he did this, he said that he didn’t mention it in his interview as he was never asked. Asked again, he said he had not mentioned this previously. He claimed he was made a team leader after the 2013 election campaign. He was [age]. It was put to him that this was very young to be a team leader and he said he was very talented and famous relative to the others in his village. A more senior ANP person took him under his wing and taught him about politics and he was very famous as a result.
He was asked whether, given his fame at a young age whether there was any evidence from media or social media that would support this, and he claimed he was famous regionally and scial media didn’t normally carry this type of story. Asked if he had any evidence he was a member or senior member of ANP, he claimed that he had given his ANP identity card to DIBP. It was put to him that country information indicated that fraudulent documents were easily obtainable and was asked if he had any photos or social media entries that showed him with ANP members or at ANP events, and he claimed that he had them on his mobile phone but because he had to go into hiding he didn’t take his mobile phone with him.
It was put to him that he could have uploaded them elsewhere or mailed them to an email account, and he claimed at that time there was no internet as he didn’t have electricity in his village and he didn’t have a social media site. He was focused on his life and not photos. It was put to him that others in his village or in the ANP would have photos of him given his fame, and he claimed that they might but since he came to Australia he had no contact with them as they themselves were hiding. Asked if they had been hiding for five years, he claimed that he had information that some had gone to [Country 1] and some had been kidnapped.
It was put to him that it would strengthen his claim if he could provide some evidence of his being a famous [age] year old ANP team leader, and the absence of any such evidence may call into question his claim. He claimed that from 2011-15 social media wasn’t active or well-known there. It was put to him that he claimed he had photos on his phone so it was reasonable to believe that others would also have taken photos of him given politicians liked taking photos and his inability to provide any from any source was unusual. He claims that there may be some but he had no access to them. Asked when he had applied for protection he claimed it was 2016 and it was put to him that it was unusual he had not tried to access any photos in the past four years. He claimed that even when he was coming to Australia he didn’t have access to his own as he was hiding. He had no contact with other people who could send him any photos they had. He said he didn’t think the photos were that important and that decisions would be made on them.
Asked why he thought he was at risk, he claimed he got texts that his family had been attacked and shots were fired at their house. Asked for more detail, he claimed that when he was working on the 2013 campaign the Taliban came to his father and told him the applicant should stop working for the ANP. Then during a ANP meeting in April 2013 the Taliban attacked it and a friend was killed and two were injured. Prior to this in February 2013 he was approached [and] told he would have to leave the ANP or he would be killed. They first approached his father in January 2013. He was present at the meeting in April 2013 but when the shooting began he and a friend escaped out the back door, and then went into hiding.
They couldn’t campaign openly during the election as a result of the attack because his life was at risk. Between April 2013 and when he left Pakistan they came again after the May election and a spy approached him at the mosque where he was praying and told him to leave the party. He was asked why they did this rather than wait for him to leave the mosque and shoot him. He claimed that he must have been lucky.
After this they came to his house and fired at their house in June 2014. They came to the house, knocked on the door, his brother answered and they asked about the applicant but he wasn’t at home. They then fired at the door (later clarified as the front gate) and told his brother to tell the applicant that this was his last chance. There were no photos of this and the gate had been repaired since. Asked why they waited until June 2014 to carry out this action, he claimed that he was hiding himself after the May 2013 election and after this he went to a certain location to meet the ANP leader and he was probably seen there (this was June 2014).
He was asked why he did this in June 2014 and he said he wanted to meet the party leader. The district party head drove him there. It was put to him that this was dangerous and he agreed but said he had no choice. The people came to his family’s house around 3 pm – the applicant was [distance] away in his father’s cousin’s house. He was asked why these people would turn up at his house at this time of day if he wasn’t there, and he claimed that they didn’t know he wasn’t there. It was put to him that if they knew where he lived then they would be more likely to wait until he came to or left the house rather than just turn up. He claimed he didn’t know how they operated and may just have wanted to scare his family.
He was asked why they didn’t just kidnap his brother and force the applicant to come into the open so they could kill him. He said it was up to them how they operated but he was thankful they didn’t kidnap his brother. It was put to him that he claimed his uncle had been killed in a suicide bombing, his party meeting had been attacked and people killed and wounded and yet here they just turned up at his house and gave a warning by firing into the gate which seemed inconsistent. He claimed they just wanted to get their target and didn’t harm families. He didn’t live at home most of the time – he would leave the house before dawn if he visited and would stay at different places – his uncle’s, cousin’s or friend’s. He did this for around a year after the election – from 2014 until he came to Australia.
Asked if he listed the other addresses he was living at when he applied for his student visa, he claimed he only put his permanent address. This was because he stayed at different places and couldn’t put them all down. It was put to him that the form normally asked for other locations they had lived at and he was asked why he didn’t think to mention them. He said that he only stayed sometimes for three nights at places – it was put to him that he had only really mentioned three places. He stayed in approximately six or eight places.
He was asked if he was effectively on the run in Pakistan because he believed he would be killed and he agreed. He was asked if he then applied for protection on arriving in Australia he said that he didn’t. Asked why he didn’t, he said he was unaware one could apply for protection and there was no one to give him proper advice. It was put to him that he was an adult and could have gone to an immigration lawyer or the immigration website, most people would likely know protection was available in Australia and yet he did nothing to seek out such an option.
He claimed he was relieved to get to safety after his life was in danger and he had a student visa valid for three years. He was going to finish his education and then apply for PR and didn’t know about protection. He was asked whether he sought advice from anyone given the fact he was an adult and the circumstances he claimed to have just escaped from. He claimed he got wrong information from people and that he would be sent back of he applied for protection. He was very stressed – asked who gave him this information, he claimed that he met people in [Suburb 1] and people at his workplace who said he would be deported. It was put to him that he would surely have checked whether it was true that a country like Australia would deport someone just for applying for protection. He claimed he was new and had never left Pakistan and no one gave him guidance. He was also thinking of getting PR from his education

He never finished his degree and left in July 2016 as he couldn’t focus on his education. He attended and failed one semester. The university cancelled his offer and he then applied for a diploma – he applied for protection in July 2016, after he had failed his course. Asked if he had been active in ANP activity in Australia in person or on-line, he claimed that he wasn’t because there was no ANP office here. He didn’t maintain on-line contact but watched meetings on-line. Asked why this was the case, given he was such a high-flying regional representative and very committed and now had no contact at all. He claimed some people had gone to [Country 1] and others had gone elsewhere. He was asked why he hadn’t tried to establish an ANP office in Australia, he claimed that he may do this once he got protection but he had been stressed about the situation.
His family still lived in the same location in Pakistan and nothing had happened to him but people had said to his father that the applicant had become secularised by living in Australia and that they would kill him for converting to Shi’ism. He was asked why anyone would be interested in him now, given he had had no contact with the ANP for the past five years, and he claimed they would remember him forever because he had once been a member and they would kill him. He would have to go back to his party if he returned because it was in his blood – it was put to him that the Tribunal found it hard to believe the party was in his blood if he had had no contact with them for the past five years. He again claimed he was stressed and if he contacted them his stress would increase as a lot of the people had been killed or disappeared.
The issue of his alleged conversion was then discussed. He said he was a very secular Sunni in Pakistan which was another reason the Taliban didn’t like him. In Australia he met Shi’a people and they became his friends. He went to their meetings, studied it and it impressed him so he joined it. Asked what impressed him, he claimed he found about the Karbala story and they sacrificed for Islam and had sympathy for them. Asked how he studied the faith and which Imam took him through the faith’s precepts, he claimed that a friend [was] explaining the religion to him and the applicant did some Google and youtube searching and learnt about the religion.
He prayed in [Suburb 1] [mosque]. Asked who the Imam was, he claimed he didn’t know his name, he just prayed behind him and went home. He was asked how he learnt about the faith enough to become Shi’a if he had no contact with the imam and searched on Google and youtube, and he claimed that this friend of his taught him and that Google and youtube were the best teachers these days and he read the book Kitab Nar al-Barada from his friend. He was asked why he didn’t go to the Imam who would be happy to see him and have a much greater depth of knowledge than his [friend].
The applicant claimed that one only needs to go to the Imam if one has a religious issue, and after reading the stories in the book and speaking to his friend he was convinced the religion was for him. Asked about the differences in praying, he claimed there were only differences in timing and that Shi’a can combine two prayers. Asked about the actual method of praying, he claimed there weren’t many. It was put to him that the member had a PhD in Shi’a political development so was aware of the differences and wanted to know if the applicant was – he claimed even when he was a Sunni he wasn’t a very religious person and now he was Shi’a the same applied.
He was asked if he had ever prayed, he claimed he didn’t pray much as a Sunni and didn’t do it the proper way as he just followed the imam. Asked about the differences in the way each faith held their hands, he claimed that the Sunni fold their hands under their belly button, but Shi’a have open hands. Asked where their hands were, he claimed that the Shi’a hands were straight next to their bodies. Asked if there were differences when they bent forward, he stated that the Shi’a had a piece of clay from Karbala that they put their foreheads on.
Regarding the original 12 imams, he was asked who they were and where they were buried, he noted Imams Ali (Najaf), Hassan (Medina), Hussein (Karbala), Zein al-Abidin, Muhammad bin-Ali (Medina) and asked whether he needed to name them all. He was asked where they were buried as it was only in a few places and he said Imam Jaafar was buried in Medina and Musa was in Baghdad.
He was asked if there was any imam buried outside Iraq or Saudi Arabia and he claimed that Imam Mahdi hadn’t been buried but he had been taken away and would return soon. Asked what the background to his disappearance was, and where it as claimed that he disappeared, he claimed he didn’t know. He said he didn’t know the background but he believed he disappeared in Iraq somewhere – it was put to him that he claimed to have read their book and learnt from [his friend], Google and youtube but didn’t know much about Imam Mahdi. He said they didn’t tell him much about Imam Mahdi and it was put to him that it was the kind of thing the mosque imam could tell him about. He claimed he was still learning, wasn’t very religious and that scholars would know that kind of thing.
Asked when he converted he said it was December 2015 – it was put to him that he had converted four and a half years ago and it was reasonable to believe that a new convert would be keen to learn about their new faith and that he didn’t appear to know much about Imam Mahdi after this time which didn’t fill the Tribunal with much confidence and the lack of any contact with the imam (or that he didn’t even know his name) didn’t help him to convince the Tribunal that his conversion was real. He claimed he wasn’t very religious and the imam was very busy, the applicant prayed at home mostly.
It was put to him that his claiming to be at risk of being killed for a religious conversion while also saying he wasn’t very religious was inconsistent. He claimed his name was Shi’a and that if he mentioned an imam’s name he would be killed. Asked what his Shi’a name was, he claimed that if they combined [his name] with being Shi’a he would be killed. He was asked how anyone know he was Shi’a if he prayed at home, and he claimed that he told his parents, who told the rest of his family who then told the village. He was asked how it was that his family told others knowing it would put him in more danger. He was asked why he told his cousins or anybody – he claimed that he shared these feelings with everyone and he encouraged them to study the Shi’a faith.
He was asked if he knew if any Imams were buried outside Iraq or Saudi Arabia and he said he didn’t know. It was put to him that it was strange given his alleged study into the faith that he didn’t know the one place outside these countries where an Imam was buried (it is at Mashhad in Iran). The applicant said he didn’t have anything else to say.
The adviser then said that the situation in Pakistan for him as a minority Pashtun was dangerous for him and it was also hard for him given his position in the party. Shi’a were also being targeted and he was believed to be a Shi’a now. His time in Australia would also mean the Taliban would target him. There was also the Pakistanis targeting the Pashtun Party (PTM) – it was confirmed with him that the adviser was not claiming the applicant was connected to PTM and he was asked to focus on the applicant’s actual claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] February 2015 and applied for protection on 14 July 2015. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant is a [age] year-old single male from Haripur in Pakistan. He claimed that if he returned to Pakistan he would be killed by the Pakistani Taliban because of his membership of the Awami National Party (ANP) and by the Taliban and the local community because he had converted to Shi’ism.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
ANP membership
I do not accept that the member is or ever was a member of the ANP or that he was or would be targeted for being imputed with membership. I have taken into account a photocopy of a card that is on his electronic file that he claims is his ANP membership card (folios 50-51) but lend it little weight. It didn’t appear to have any security features to it, and country information indicates that document fraud is widespread in Pakistan.[1]
[1] DFAT Country Information Report – Pakistan, 20 February 2019 p 71.
More particularly, I do not accept his oral evidence regarding his claim of membership as being credible for a number of reasons. To begin with, he has been unable to provide any other supporting evidence regarding his claim. He has no social media entries, mainstream media reports, nor any photos that could have given some substance to his claim.
I do not accept that the photos were on his phone but that he was unable to take it with him because he went into hiding, or that he was focused on saving his life and not photos. It was never an either/or decision as he could easily have uploaded these photos elsewhere or emailed them to someone – I do not accept that he was unable to access internet anywhere given he travelled to Peshawar on occasion (according to his written claim he was there for New Year’s 2014 and also after the alleged incidents and prior to coming to Australia).
The lack of any supporting evidence is also inconsistent with his claim that he was an [age] year-old team leader of around 20 people who had a degree of fame as a consequence of this. Even if I was to accept his claim that social media wasn’t used in the area at that time, print media was and his inability to provide any evidence of a media profile of any sort raises concerns. It is also reasonable to believe that he would have been able to get photos of him conducting political activities from other ANP activists if they existed. He was vague as to why he couldn’t, simply saying that some people who had them had subsequently been kidnapped while he heard others had gone to [Country 1]. He appears to have made no effort to try and locate them in the four and a half years since he claimed protection, which is not indicative of someone keen to establish their claim.
There are other issues that raise concerns regarding his claim – although he initially claimed that he had mentioned that he was a team leader previously, he then stated that he hadn’t. Given its significance it is reasonable to believe it would have formed part of his initial statement, and I do not accept that he didn’t mention it in his interview because he wasn’t asked about it. Once again it is reasonable to believe, given he was allegedly famous because of it, that he would have mentioned it without having to be asked what his position within the organisation was.
I also note that, despite having been a regionally famous ANP member because of his team leadership at such a young age, he has had nothing to do with them in the five years he has been in Australia. Although he claimed there was no office in Australia, he has done nothing to start one nor does he have any contact, social or professional, with ANP members in Pakistan or elsewhere.
His five-month delay in applying for protection once he arrived in Australia is also inconsistent with someone who feared being killed because of his political profile and who had allegedly hidden from general society in Pakistan for over a year. I do not accept that he was unaware that he could apply for protection, that people told him he could be deported if he tried or that he felt safe because he had a student visa. Given he claims his life was at risk I do not accept that a well-educated adult who was allegedly a team leader of a political party at age [age] would have been unable to have sought advice by looking at the Immigration website or talking to an immigration lawyer or migration agent once he arrived, if he was as at risk as he claimed to have been. I do not accept that he was going to finish his education and gain PR as neither of these were certain to occur, and he could still have continued with his studies even if he applied for protection.
Because I do not accept that he was ever a member of the ANP it follows that neither he nor his family were ever targeted, nor was he ever threatened. The nature of his claim supports this finding. He claimed at hearing that his uncle was killed at an ANP rally in October 2008 but that the Immigration department had incorrectly recorded the date as October 2014 on its decision record. When he was advised that he had stated the date as October 2014 in his signed statement, he then said that this was a mistake and the real year was 2008. I do not accept that he would have mistaken the date of such an important event and given this and his general lack of credibility I do not accept that his uncle was killed in a bomb attack at an ANP rally.
The nature and timing of the threats he and his family claim to have received also raises concerns about the credibility of his claim. In 2013 they told him through his father in January 2013 to stop working for the ANP, directly threatened the applicant with death if he didn’t stop working for the ANP in February 2013, attacked a meeting he was at in April 2013, a spy came to him in the mosque the applicant was praying at and again told him to leave the party and in June 2014 people came to his family’s house looking for the applicant and fired shots at it and left.
If the intent was to kill him it makes no sense not to do it when he left the mosque but rather to send a spy into the mosque to warn him for the fourth time. Similarly if they knew where he lived it makes little sense that they wouldn’t wait for him to be there before they sent people to the house, search the house once they were told he wasn’t there or kidnap the brother until the applicant was handed over. I do not accept that the Taliban didn’t touch families as no evidence to support this claim was provided and it relies solely on the applicant’s oral evidence which I have found lacks credibility.
Conversion to Shi’ism
I do not accept that the applicant has converted to the Shi’a faith. It relies largely on his oral evidence which I have found lacks credibility. Simply instituting a quiz about a person’s knowledge of their faith is not the only way to determine their genuine membership of it, but particularly with a convert who claims to have researched the subject over a number of years it can be a useful guide. The applicant exhibited a surface knowledge of some of the main characters of the Shi’a faith and of differences between Shi’a and Sunni methods of prayer. His lack of knowledge of the one burial site of one of the Twelve Imams who is buried outside Saudi Arabia or Iraq raises serious questions as does his lack of knowledge about the site where Imam al-Mahdi (the Awaited One) disappeared from earthly view. These are central characters in the Shi’a faith and his lack of knowledge is inconsistent with his claimed study into the faith.
His inability to name the imam of the Shi’a mosque he claims to attend does nothing to alleviate my concerns, but his complete unwillingness to engage with the Imam on any issues relating to the Shi’a faith or his conversion is at odds with what a reasonable person would consider the method of a genuine religious search for knowledge. His claim that he learnt from a friend and by looking at Google and Youtube is not indicative of someone genuinely exploring a new faith.
Similarly, his claim that he was not a very religious person is also inconsistent with his claim to have been attracted to Shi’ism with sufficient intensity to convert to it. Because I do not accept that the applicant has converted to the Shi’a faith it follows that he never told his parents, that they told anyone else or that the Taliban have become aware.
Other Issues
The adviser claimed that the applicant would be harmed because of the time he had been in Australia and that it was dangerous for him in Pakistan because he was Pashtun. The applicant didn’t claim to fear serious harm based on his ethnicity, but he did claim to be Pathan (Pashtun). I note that country information[2] indicates that Pashtuns in Pashtun-majority areas (where the applicant lives) face low levels of official discrimination. I note the applicant’s father was a government employee and the applicant himself was well educated and came to Australia to study. I do not accept that the applicant’s mother’s [business] was destroyed by the Taliban as it relies largely on the applicant’s oral testimony which I have found lacks credibility.
[2] Ibid, p 24
I also do not accept that the applicant would be at risk because he had been in Australia. No country information was provided to support such a claim and the DFAT Country Information report referred to in the footnotes support the finding that Pakistanis returning as failed asylum seekers do not face a real chance of serious harm on return.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever a member of the ANP or been threatened for being a member, has converted to Shi’ism, that his mother’s [business] was burnt down, or that he would be harmed for being a Pashtun or for having resided in Australia, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept 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 the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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.
Rodger Shanahan
Member

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

[2020] AATA 2666

25 June 2020

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