1713641 (Refugee)

1713641 (Refugee) [2019] AATA 6702 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1713641
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Jason Pennell
DATE:3 October 2019
PLACE OF DECISION:  Melbourne
DECISION:  The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 3 October 2019 at 12.36pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – imputed political opinion – Shia minority in Sunni majority country – attacks and threats by extremists as work sector employee and charity volunteer – failed business venture with Sunni man – credibility – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R(1)(a)
Migration Regulations (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379

MIEA v Guo (1997) 191 CLR 559

MIMA v Darboy (1998) 52 ALD 44

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 on 31 July 2014 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 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 29 July 2013 and the delegate refused to grant the visa on 31 July 2014. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Migration Act 1958 (the Act)
The applicant appeared before the Tribunal on 12 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Criteria for a protection visa

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.’
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
[1] s.91R(1)(b)
[2] s.91R(1)(c) of the Act
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]
[3] s.91R(1)(a) of the Act
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

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’).
An applicant is considered not to be at a real risk of suffering significant harm in a country if:
·it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm;[4] or
·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[5]
·The real risk is one faced by the population of the country generally and is not faced by the applicant personally.[6]
[4] Migration Act 1958 s.36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
[5] Migration Act 1958 s.36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.
[6] Migration Act 1958 s.36(2B)(c)

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicants’ migration history

The applicant arrived in Australia [in] March 2013 as the holder of a [temporary] visa. The visa was granted [in] January 2013 and expired [in] September 2015. He lodged his application for a protection (class XA) visa on 29 July 2013.

Country of Reference

The Department's file ([number]) (“the department file’) contains a photocopy of the applicant's passport[7] from the Islamic Republic of Pakistan. It shows he was born on in Karachi Pakistan. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.
[7] Department's file ([number]) @ f. 104
Accordingly, the Tribunal finds that the applicant is a citizen of Pakistan and as such his protection claims will be assessed against Pakistan as the country of reference and 'receiving country' respectively.

Documents before the Tribunal

In making its decision the Tribunal has considered the following documents provided by the applicant to the department and the Tribunal in support of his claim:
(a)Applicants Statutory Deceleration dated [July] 2013.[8]
[8] Department's file ([number]) @ f. 39
(b)[Employer 1] letterhead.[9]
[9] Opcit @ f.45
(c)Submissions by applicant’s representative dated [July] 2013.[10]
[10] Op Cit @ f.63.
(d)Submissions by applicant’s representative dated [February] 2016 (including the attachments as listed).[11]
[11] AAT file No1414141 @ f.215
(e)Certified copy of the applicant’s passport.[12]
[12] Department's file ([number])@ f.104.
(f)Photo of damaged car.[13]
[13] Op Cit@ ff.112-113
(g)First Information Report dated [March] 2013.[14]
[14] Op Cit@ f115.
(h)[Mr A], Psychologist Report dated [November] 2013.[15]
[15] Op Cit @ f 121.
(i)Applicant’s Certificate of Domicile dated [September] 1999.[16]
[16] Op Cit @ f 127.
(j)Various certificates of appreciation, recognition and attendance awarded to the applicant.[17]
[17] Op Cit @ ff 128-133; AAT file 1414141 @ Ff69-73
(k)Notice from Tahrik-e-Taliban Pakistan.[18]
[18] Op Cit @ f 134
(l)Declaration by [Mr B] dated [April] 2014.[19]
[19] Op Cit @ f 135; AAT File 1713641 @ f.69
(m)Declaration by [Mr B], dated [November] 2014.[20]
[20] Op Cit @ ff 148
(n)Declaration by [Mr B], dated [November] 2014.[21]
[21] AAT file 1414141 @ f. 242
(o)Statutory declaration by [the applicant] dated 11 October 2018.[22]
[22] AAT File 1713641 @ ff.45-47
(p)Tenancy Agreement dated [June] 2015.[23]
[23] Op Cit @ F 56.
(q)Tenancy Agreement dated [May] 2014.[24]
[24] Op Cit @ f 58
(r) Tenancy Agreement dated [August] 2013.[25]
(s)Agreement for Sale dated [July] 2013.[26]
(t)Document entitled ‘Application against unknown person suspects and kill threat’ dated [April] 2015.[27]
(u)Order of Court dated [May] 2015.[28]
(v)Psychological Report dated [September] 2018 by [Psychology services provider].[29]
(w)Various photos of demonstration conducted [September] 2018.[30]
(x)Various newspaper articles.[31]
(y)Letter to Secretary of State of the United States of America dated [October] 2018.[32]

The applicant’s protection claims

[25] OpCit @ f.110

[26] OpCit @ f.62

[27] OpCit @ f.64

[28] OpCit @ f.66

[29] AAT File 1713641 @ f. 65

[30] AAT File 1713641 @ ff. 58-61

[31] AAT File 1713641 @ ff 47-58, & ff. 30-44

[32] AAT File 1713641 @ f43

The applicant’s protection claims are detailed in his application for a protection visa dated 29 July 2013 and summarised in the delegate’s decision dated 31 July 2014[33] as follows:
[33] Department's file ([number]) @ f. 159 Tribunal decision dated 7 February 2017 AAT File 1414141 @ f231
(a)The applicant is a Shi’a Muslim, born in Karachi, in the Sindh province of Pakistan.
(b)The applicant qualified as an [Occupation 1] in Pakistan and worked as the [Employer 2] in Karachi.
(c)The applicant joined IMAMIA Organisation Pakistan (IO) – part of the Shi’a Ulema Council (SUC) in 2006. This group assists poor communities with food, shelter and access to education.
(d)In March 2009, the applicant received a phone call from a man who spoke Urdu with a strong Pashtu accent. The man threatened the applicant telling him he will be killed unless he changes his religion. The applicant reported the call to the police but they took no action.
(e)In December 2009 the applicant was returning from a religious gathering when he was beaten by ‘a bunch of people.’ Again the applicant tried to report this incident but the police failed to take any action.
(f)In June 2012, he received a threatening letter from the Tahrik-e-Taliban Pakistan (TTP) demanding that he change his religion and provide them with a list of rich Shia businessmen from [Employer 2]’s database. The applicant did not comply with the demands and transferred to another [work location] of [Employer 2] in Karachi.
(g)The applicant decided to flee Pakistan and applied for a [temporary] visa for Australia.
(h)In March 2013 the applicant was driving from work with a friend when he was shot at by two men on motorbikes, they managed to get away and filed a police report about the incident.
(i)In addition the applicant claims that he was an investor in a [farm] along with Sunni man called [Mr C]. The applicant claims that [Mr C] stopped paying him any profits from the business. He suspects that [Mr C] may be responsible ‘for putting the extremists on to me.’
(j)The applicant fears that he will be killed if he returns to Pakistan.

The Applicants’ evidence

The applicant confirmed that he is [number] years of age and arrived in Australia [in] March 2013. He was born in Karachi and his family remain in Pakistan.
The applicant’s evidence was that his mother and father continue to reside in Karachi. His father is a retired [Occupation 2][34] and his mother is engaged in home duties.
[34] Department file [number] @ f 69-70
The applicant’s evidence was that he is the [birth order] child in his family and that he has [a number of siblings]. One [sibling] is married and has [number] children while the other is a student. The applicant’s [sibling] resides in Australia. He said that [this sibling] has been in Australia since 2009 on a [temporary] visa and works as an [Occupation 3].
The applicant’s evidence was that he is a practicing Shia Muslim. The applicant stated that when he lived in Pakistan he and his family would regularly attend the Mosque to pray approximately four days a week. He is a member of the [Organisation], a non-profit registered organization which stands for the preservation, propagation and practice of articles of faith among Shias. He stated that the [Organisation] is located in [Suburb] and that he attends many events, generally on Thursdays followed by prayers. His evidence was that there are five prayers and it starts after sunset. Sometimes he attends with his brother. The applicant provided a reference form [Mr D] of the [Organisation] dated [February] 2016 as evidence of his membership of the [Organisation].[35]
[35] AAT File 1414141 @ f 68.
The applicant’s evidence was that he obtained a [Qualification in Subject] for the [University].[36] The applicant’s evidence was that he joined the IMAMIA Student organisation (ISO) in or about 2003 while he was at University. His evidence was that the role of the organisation was assist students with their education and to help them with issues within the community. His role was that of [organisational task].
[36] Department File [number] @ f. 99 (copy of the applicant’s Certificate of [Qualification] from the [University])
The applicant stated that he joined the Shia Ulema Council in 2006 and was involved in it until he left for Australia. The applicant confirmed that the two organisations are interconnected. He confirmed that the Shia Council is a political based organisation but stated that he was only involved in the charitable side of the organisation. The applicant was able to demonstrate a sound understanding of the difference between the two, IMAMIA being grass roots organisation for the welfare of Shia students and student involvement and Ulema being a political party which would “raise the Shia people’s voice to the Assembly”.
The applicant’s evidence was that in addition to his regular employment he would work as a volunteer with the IMAMIA 3-4 days a week for 2-3 hours. In his voluntary role as [organisational task] he said he would basically do what needed to be done in the office including reporting on major issues such as murders of Shia’s. His evidence was that it was a shared role and his responsibilities included developing fliers, assist in distributing funds to those affected by terrorists and collect and generate data as to where they lived.
The applicant’s evidence was that there are many fanatics and extremists who targeted Shias in Pakistan and as part of his work with the organisation he had information about individuals and, with others, would meet and discuss with people who were targeted.
The applicant’s evidence was that he worked for [Employer 3] in the [department] from 2003 to 2005[37] and was employed by [Employer 2] from 2005 to 2013.[38] The applicant arrived in Australia in 2013. The applicant’s evidence was that he started with [Employer 2] as a [job position 1], before moving to work as a [job position 2] and [job position 3].
[37] AAT File 1414141 @ f 67 (reference by [Mr E] of [Hospital])
[38] Department File [number] @ f. 92 (Confirmation of employment letter dated [April] 2010).
The applicant claims that between 2009 and 2013 he received threats by phone and mail. In addition he states that he was beaten and someone tried to kill him.
The applicant claims that in or about March 2009 he received a call at work. A male threatened to harm him if he did not change his religion and stop his charitable work. The applicant’s claimed that the man knew his name and that he said to the applicant that he was not a Muslim and that he was to stop working at [Employer 2]. He said that he received the call in the morning on his direct line at work. The applicant’s evidence was that he discussed the phone call with one of his colleagues and his manager at work. He said that both of them tried to reassure him that the call was a prank.
The applicant’s evidence was that he did not know who made the call but stated that he thought it was a Sunni extremist. The applicant stated that the person spoke Urdu with a Pashtun accent and as such thinks he was Taliban.
The applicant confirmed that he discussed it with his colleagues and they said report it to the police. He registered a complaint with the police. The applicant stated that he did not report it to [Employer 2] only to colleagues as he was confused as to what he should do. He said that he did discuss it with colleagues and line managers. He said there was no tracking system at the office for such phone calls. When asked if [Employer 2] had policies which he could follow he confirmed that you would go to the police.

The applicant confirmed that no similar calls had been received by others in the office. The applicant stated it was unusual to receive something like this. He confirmed that the Police took down the details but could not track the call. The Tribunal asked the applicant if he received any paperwork pertaining to the police report and he said no. The Tribunal asked if the applicants name was listed on anything and he said no. The Tribunal asked the applicant if he believed he had a profile which would lead people to try and target him. He stated that his work is charitable. He said that within the charity in which he works there are well known people who do have their names listed on public documents but he does not. Yet, he claims that the caller seemed to know him and hence he was disturbed by this.
The applicant’s evidence was that [in] December 2009 there was a blast in Ashura. He was there when it happened. The next day there was a huge funeral procession for people who had died near his office. When the blast occurred the applicant went to see people and helped identify victims of the attack and keep notes. His role when volunteering was to liaise with people and manage dead bodies and assist with the funeral procession. He had to manage people and keep them calm. There was a stall in his office and if people needed help they could come and he would help them. He assisted in crowd control.
The applicant was able to assist with the funeral procession and his voluntary work as he took time off work. He claims he called [Employer 2] the following day after the bomb blast and said he couldn’t come as he had personal work and he took 2 days off. He said that on the third day there was a big prayer after the blast and people go to their houses and pray.
[In] December 2009 two days after the blast and a day after the funeral procession he was bashed with the butt of a gun by 4 people after attending a religious gathering. His evidence was that he went to the office of the Shia Council (which is located next door to the Mosque) at about 5.30pm to carry out his voluntary work. The address is [address]. His evidence was that the religious gathering finished at about 9.15pm and that he was attacked on the way home at about 9.45pm. The applicant’s evidence was that he was on a bike traveling home when the attack occurred. He stated that they said to him that he would regret it if he doesn’t stop his work. The applicant claimed that he was alone at the time of the attack. However, he was referred to the fact that his statement attached to his protection application states that ‘the applicant with others was accused and bashed.’ The applicant’s response was to confirm that he was alone and that the statement was wrong.
The applicant’s evidence was that he did not fight them because he could not run away as they had a gun. The applicant was by himself and stated that after the attack some passers-by found him and took him to the hospital for treatment. The applicant has provided several inconsistent accounts of the medical treatment he received. At the previous Tribunal hearing the applicant first stated he went to the hospital in the morning. He then stated that he went that night and then claimed that he stayed overnight. Finally the applicant claimed that he stayed outside in the hospital and he called his father to come. The applicant claimed that it took 2-3 hours for his treatment and his father collected him so that is why he said overnight but he didn’t really stay for the full night Given the passage of time this it is perhaps not surprising that the applicant has provided different accounts of the incident. However, the Tribunal would have expected the applicant recollection of the event to have been at least consistent albeit that he may not have been able to recall the specific details. The applicant stated that that he reported the incident to police.
The applicant’s claimed that he reported the matter to police but there was no official FIR but stated that the police officer had noted it on a daily ledger.
The applicant’s evidence was that from March 2009 and December 2009 he had not received any other threats.
The applicant claimed that as a result of the attack his family became concerned about his welfare and stressed that he must look after himself and be careful. He said he mentioned it to the Mullah at the Mosque who had suggested that he change his routine and timing of attending the Mosque.
The Tribunal asked the applicant why he believes he was targeted and he said he collects information about Shias and what their daily needs are. He surmised that he has developed a profile. The applicant claimed that he was sent out with 2-3 people to people’s houses to see if they needed help. The applicant claims that he thinks he was being watched. The applicant claimed that a man with whom he was working in a voluntary capacity, [Mr F], was also experiencing similar threats and was killed by gunshot in 2013.
The applicant stated that by 2010 he had become very concerned so he asked his line manager to change his [work location] because he was worried he might be followed. He also changed his route to work and the organisation. Twelve months went past with no incident but in 2011 he received a call on his mobile during the day. His evidence was that the caller said threatened him with the same thing, namely ‘that we know where you work and stay and we know everything.’ The applicant claims that the caller demanded that the applicant stop his work and threatened his family’s security if he did not. He claimed that the man spoke with a Pashtu accent. The applicant stated that he could not be sure if it was the same man as in the past.
The applicant claimed that he received a second call that was very aggressive and demanded that he change his religion, stop his work and provide details of all the major [clients]. The applicant did not provide the tribunal with any details as to when and where he received the call. He claimed that he mentioned the call to his line manager but stated that his line manager said that it was not be a good idea to report the matter to the [Employer 2] as it would not be good for his career. The applicant claimed that he reported the incident to the police as it referred to his personal activities. There is no copy of the police report. The applicant’s evidence was that the police did not produce a report or FIR because it was the first time he has been in the area and as such they are not able to make an FIR. The Tribunal explained that this is not normal. The applicant said that they would not do an FIR.
The applicant evidence was that in 2011 he received another call on his mobile phone. He stated that he went to the police again and they said that they will try and trace the call but they didn’t. The applicant stated that he did not want to tell his employer however he did discussed it with his colleague. The applicant stated that the person on the end of the call asked for contacts details of the [Employer 2]’s customers who were Shia businessmen. When asked by the Tribunal if he thought it was a legitimate call he explained that he had merely been told to listen before they hung up.
The applicant’s evidence was that as a result of the call he requested that he be transferred to another [work location]. He claims that he used the excuse that it was too far from home. As a result he was transferred to another [work location] in 2012. After the transfer he was promoted to the position of [job position 3]
In 2012, after the applicant had been transferred to another [work location] he claims that he received another call. The applicant claims that they said to him words to the effect that ‘we know everything and all the [work locations] you are running to and if you don’t stop you will die.’ He claims that as a result of the phone call it was hard to concentrate and he thought people were following him. He said his work was affected. He said his father was asking him what is going on.
In addition, the applicant claims that in 2012 he received a threatening letter at his home. As a result the applicant claims that he changed his routes to work and home. The letter detailed the location of where the applicant attends school and stated they knew where the applicant works and again threatened him if he didn’t fulfil their needs.
The applicant’s claims that his father believed it demonstrated that he faced serious harm. As a result, asked if he had mentioned it to the Mullah and asked if he reported it to the police. The applicant claims that the police refused to file the FIR stating it will be a problem in the future for both them and him as information can be leaked to create problems.
The applicant claimed that he was concerned for his and his family’s life. He stated that the letter was unusual as it was hand written and hand delivered to the applicant’s home. The applicant asked his father to send it to him. The applicant stated that he was worried and he thought about going to another country so he applied to come to Australia in 2012.
[In] March 2013 the applicant stated he was fired upon. He stated that he had picked up a friend to take him to [Employer 2] as he owed the applicant money. They were on their way to [Employer 2] in a car when two men on one motor bike fired at the car on the applicants left side. They were shouting at the applicant and his friend [Mr B]. He was on the right side and the applicant stated they fired two shots. The declaration of [Mr B] dated [April] 2014[39] confirms that he and the applicant were fired upon by two unknown gunmen riding a motorcycle. The First Information Report dated [in] March 2013 (FIR report) provided by the applicant refers to the applicant and his friend, [Mr B], being shot at by two unknown gunmen riding a motor cycle.[40] However, based on the relevant coun try information the Tribunal places no weight on the FIR report provided by the applicant.[41] The applicant turned into a dead end street. The motor bike men followed the applicant’s until they saw the armed station guard. The station guard gave him water. The friend was with him. He was so upset he couldn’t understand what happened. He was not in a position to drive. His friend took him to the police station. The officers at that time were Bhutan and Urdu speaking people. He explained the details as to who was driving. He said it must be a personal matter and didn’t take it seriously. He explained that he faced these problems before but they didn’t make any investigations.
[39] The declaration by [Mr B] dated [November] 2014 confirms the date of the incident as [specified day] March 2013; (see AAT File 1414141 @ f 242.)
[40] Department's file ([number])@ f.115.
[41] DFAT Report @ p.37
The applicant claimed that the police were not interested in the incident. They did take a witness statement from the applicant’s friend. He said the police investigation was so bad and nothing was ever reviewed. He stated that the police were not able to help.
The applicant said he left for Australia after a week and there was no follow-up from the police. He wasn’t able to ask the police for anything and he never received any further threatening calls as “they thought their work was done” – he explained whatever it is they wanted to do it was done.
The applicant confirmed his house was approximately [number] km from where he works and that when he changed [work location], they were in similar proximity to his home. The Tribunal put to the applicant that this seemed unusual in that the applicant was attempting to relocate and avoid being found by the people he claims were after him. The applicant stated that given the size of the population he felt that a move within that proximity would be ok.
In November 2015 the applicant claims his father was shot. Prior to the shooting he too received similar threats and had to change houses. In 2013, it became so bad for him he sold his home after 4 months at a loss because he was so desperate.
Country Information was put to the applicant regarding Shia IMAMIA and also the TTP, noting that country information did not support the applicant’s claims of conversion and that people in Pakistan could generally practice their religions in peace and that Shia and Sunnis have attended the same Mosques. In addition to this it was put to the applicant that in recent months the amount of attacks by the TTP has decreased by 75%.
The applicant disputed the country information. He claims that there are many examples that this is not the case. He provided examples of a news report that Al Qaeda and the Taliban are still very present in Pakistan and mentioned they were in the four provinces he has lived. The Tribunal has considered the newspaper articles provided by the applicant including the Dawn News on 21 February 2016 which shows these issues when a Pakistani intelligence document was leaked.
The Tribunal discussed relocation with the applicant. The Tribunal discussed country research explaining that the applicant appears to have relocated in close proximity to where he claims the TTP extremists exists and that there are many parts of Pakistan where he could live outside of Karachi such as Lahore where he may not have a profile. He is educated and could find employment and there is a diversity of ethnicities. He said that being an Urdu speaking Shia who doesn’t speak other dialects he can’t hide in Karachi and that he could not go anywhere else. He claims that he doesn’t speak Punjabi so it is hard to relocate to another area. The applicant said the Taliban have cells everywhere. The fact that they know his name, his language and that they have targeted him, in spite of him moving around, means relocation is not an option at all.
The applicant also asked that it be considered that his father was targeted and shot since the applicant has been in Australia. He claims it was punishment because the applicant left Pakistan and he also believes his father was part of establishing a Shia charitable organisation and practicing in the Mosque every Friday. The applicant said that he was specifically targeted. He said he relocated three times and it was not easy.
The Tribunal notes that the previous Tribunal decision refers to an interview with Mr [G], a witness for the applicant, who stated he was also involved in IMAMIA with the applicant and that he had a family association with the applicant in Pakistan. Mr [G] claimed that he had seen the applicant working 3-4 times at IMAMIA in or about 2007-08 in Pakistan. He confirmed that they were not close friends. He said there was a family connection and the applicant was doing charity work with Mr [G]. He confirmed that they both volunteered there and raised funds and collected donations.
The witness came to Australia in 2009. He confirmed that he knows the applicant as a practicing Shia Muslim in the Mosque at [Suburb] where they both attend. He said that he sees him monthly and he said that the witness is known for fundraising for the community. He was mentioned by the Mullah for his involvement in charitable work. He confirmed that the applicant was one of the key fundraisers within the community. The witness said that he doesn’t know the applicant’s family.
The Tribunal asked the witness if he knew about the applicant’s father being shot and he confirmed he was aware through the Shia Ulmer Council but he did not know the details. The Tribunal asked the applicant’s representative if he had any comments and he stated no, only that the applicant has coped with this very well. And reliving this is hard but he has explained it. He said that the trauma of his father being shot has caused him to struggle and can’t afford to do things
He fears harm due to his religious affiliation as a Shia Muslim and his imputed political opinion. He stated he is a middle class, moderate with modernist views and is not especially political and for that reason, extremists in Pakistan will impute him.
He claims he received 4 calls on his office line and mobile phone of a similar nature.
[In] March 2013 the applicant claims he was driving home from work with a friend when he was shot at by two men on a motorbike. The bullet went into the boot and through to the driver’s seat. He claims he managed to get away and filed a police report about the incident. The FIR is attached.
The applicant claims he was an investor in a [farm] along with Sunni man called [Mr C]. They were childhood friends. He claims that the farm was set up in Karachi in an area dominated with Pashtun fanatics. The applicant invested 500,000 rupees into the business. A verbal agreement saw the applicant owed 25% of the profits annually. The applicant received up to 50,000 however [Mr C] stopped paying him and showing him the accounts claiming it had stopped making a profit. He refused to take calls from the applicant and because the applicant is a Shia he believed it was too dangerous to go to the area by him stating the Taliban will place themselves in Sunni dominated areas and conduct road blocks. People can be asked for ID and if they have Shia names they can be shot. The applicant stated that it is a possibility that he may be responsible for putting the extremists onto him.
He fears he will be killed if he returns to Pakistan and that given his claimed experiences and country information and media reports, he believes this demonstrates a real chance of being persecuted on the grounds of his religion and imputed political opinion.
He believes he cannot relocate because his name identifies him as a Shia. He stated that the authorities cannot provide protection.
The applicant applied for a student visa to Australia in order to get away from the harm he feared.

The Applicant’s 7 February 2017 Pre-hearing Submission

The Tribunal in its decision dated 7 February 2017 noted that the delegate’s had made an adverse finding based on the applicant’s ‘inconsistent information on his application compared to that at the interview.’ The applicant disputed the delegate’s decision and submitted various examples and explanations as to why there was no inconsistency. For example, it was stated that the applicant had employment with [Employer 2] and volunteered with Shia charitable organisations. The applicant confirmed that IMAMIA is part of the Shia Ulema Council. He stated that he used his financial skills in a voluntary capacity for Shia charities and where he would provide financial advice to individuals and assist in helping the charities determine where money should be allocated. As a result the applicant claimed that he was able to work at both places. He claimed that his community work was around 4 days per week and outside of work hours. The applicant explained that he did not intend this work to be political but that it can be perceived as political.
The applicant addressed the delegates concerns that his explanations of telephone calls that were not consistent with the claim in his application. He argued about the weight given by the delegate to the requirement of evidence and the delegate’s dismissal of oral evidence. The submission argued that the delegate should not have dismissed a document due to an error in the date but could have had it forensically examined it. The submission argued that the events describe were not implausible, sighting examples of drive by shootings being common place. While the Tribunal concedes that the events describes by the applicant were not implausible, they appear to be more akin the action of random violence that occurs in city such as Karachi rather than an systematic and discriminatory conduct by which it may be claimed that the has been persecuted.
The applicant argued that there are significant amounts of country information to support the view that the Taliban do try and force conversion from Shia to Sunni Islam.
It has been argued that the applicant’s speedy application for protection should be noted and that his interest in the Shia community has continued since he has been in Australia and that he had a good career in Pakistan and no real incentive to leave Pakistan. The Tribunal concedes that he has continued to be a Shia Muslim while in Australia and that there has been no delay in him making his application for protection in this case.

The submission included information regarding the profile of the applicant’s father and his experience. The applicant’s father is a retired [Occupation 2] and also established [an organisation] in [City] and was the administrator of that [organisation] for [number] years. It claimed that he has had many death threats and has been shot at. A document regarding his treatment was provided to the Tribunal. The Tribunal also notes that on the applicant’s department [file] [number] folio 69 and 70 that the applicant’s father makes mention of the fact that he is retired from [Employer 3].
It stated that the applicant’s father has not been supported by police when he has tried to initiate FIRs and as he continued to receive death threats, he has tried to relocate three times from 2013-2015. Copies of sale and tenancy agreements were provided to support his claims regarding relocation attempts.
Numerous articles, reports and publications were provided to support the applicant’s argument that the Taliban is the perpetrator of violence in Pakistan and will pursue him wherever he goes were provided. These included articles on the Pakistani Taliban, a Danish Institute for International Studies Report on the Taliban (2012), articles on conversion, a job description of the applicant’s position in Pakistan, further employment records and achievement certificates from the applicant’s work, a 2011 Refugee Documentation Centre paper on police corruption in Pakistan, a 2008 report on reforming the Pakistani police, a 2013 news report on a Shia leader killed in Karachi, a reference letter from the Imam of the applicant’s involvement in his local Mosque, documents supporting to the applicant’s father’s work in the [organisation], a court order regarding the FIR, a letter to the police regarding the attack on the applicant, residential documents showing the applicant’s father has moved, media reports of violence in Karachi.
The submissions provided to the Tribunal prior to the hearing on 7 February 2017 stated that evidence of the applicant’s father’s treatment will be forwarded after the hearing to support the claim that he was shot in November 2015 and treated in hospital. As far as can be determined for the file this evidence was not provided by the applicant.

COUNTRY INFORMATION

In considering the applicants claim the Tribunal has considered the country information available in relation to Pakistan, including the Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 20 February 2019 (the DFAT Report’) which states as follows:
Shi’a[42]
[42] DFAT Report @ p.35
3.90.Pakistani Shi’a live throughout the country in urban centres, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. While Shi’a are not a majority in any of Pakistan’s four provinces, they are a majority in the autonomous region of Gilgit-Baltistan.
3.91.Significant numbers of Shi’a live in Peshawar, Kohat, Hangu and Dera Ismail Khan in Khyber Pakhtunkhwa; in Kurram and Orakzai districts in the former FATA; in and around Quetta and the Makran coastline in Balochistan; in parts of southern and central Punjab; and throughout Sindh. Although some Shi’a live in enclaves in these cities (see Hazaras and Turis), Shi’a and Sunni communities are generally well integrated.
3.92.Most Pakistani Shi’a are not physically or linguistically distinguishable from Pakistani Sunnis. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a Muslims. Some Shi’a may be identifiable by common Shi’a names such as Naqvi, Zaidi and Jafri. Similarly, ethnic and tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, and significant numbers of Bangash are Shi’a.
3.93.Shi’a in Pakistan are most prominent during Shi’a religious events and pilgrimages to Iraq and Iran. Shi’a commemorate the Day of Ashura with re-enactments of the martyrdom and processions, during which Shi’a men and women dressed in black parade through the streets slapping their chests and chanting. Self-harm, such as flagellation performed during Ashura processions, can leave permanent marks. Shi’a and Sunni mosques are clearly distinguishable.
3.94.Shi’a mosques and places of worship, or imambargahs, feature different Muslim iconography, including the Shi’a sword, horses, images of Ali and Hussein, and ‘U-shaped’ crescent moons. Shi’a and Sunni mosques have different prayer times, and worshippers use different hand positions while praying. Shi’a mosques are located throughout Pakistan. Shi’a can pray in Sunni mosques and vice versa, although this rarely happens. Both sects share a number of famous religious sites, including Sufi shrines.
3.95.No legal barriers prevent marriage between Shi’a and Sunnis in Pakistan. While marriages do occur, Sunni-Shi’a marriages are becoming less common in an environment of increasing religiosity. One partner (typically the bride) usually undergoes religious conversion. DFAT is not aware of forced conversions between sects.
3.96.DFAT has no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector. However, some Shi’a perceive discrimination against Shi’a gaining roles at higher levels of some organisations. Overall, DFAT assesses that Shi’a who are not Hazara or Turi generally do not face discrimination based on their religious affiliation when seeking employment. Low-level anti-Shi’a discrimination does occur at the community level, and can manifest in violence or damage to property.
3.97.Sunni and Shi’a students attend the same public and private education institutions. Students must declare their religious affiliation for entry into both public and private institutions, including universities. Religious bias in public education predominantly affects non-Muslims, but Shi’a groups have raised concerns that the public school syllabus and prescribed textbooks contain depictions of Sunni prayer rituals, and omit prominent historical Shi’a figures.
3.98.Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation.
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. Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ[43], 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.
[43] ‘Lej’ is the Lashkar-e Jhangvi a Sunni paramilitary terrorists group (see DFAT report @ p.21)as
3.100.The LeJ has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta 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. 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.
3.104.Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups. High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.
Anti-Shi’a violence[44]
[44] DFAT Report @p.37.
3.105.Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests. The NAP and the highly visible presence of the paramilitary Rangers, have led to a significant decrease in violence, including sectarian violence. Sunnis and Shi’a live throughout the city, although concentrations of Shi’a, particularly Harazas can be found in Abbas Town, Hussain Hazara Goth, Mughal Hazara Goth, Rizvia, Ancholi, DHA Gizri, Pak Colony and Manghopir. According to the SATP, at least two sectarian attacks targeted Shi’a in Sindh province in 2017, resulting in at least 90 deaths, while one attack causing one death occurred between 1 January and 6 May 2018. DFAT assesses that a low level of sectarian-motivated violence in Karachi exists within the context of a moderate level of overall violence. The sustainability of recent security force efforts to reduce violence in Karachi is not yet clear. Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests.
3.106.In Punjab, 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 southern Punjab, and Sunni and Shi’a communities are more segregated. Shi’a live throughout Punjab, including in Lahore. Shi’a and Sunni communities in cities are much more integrated. According to the SATP, three incidents of sectarian violence in Punjab in 2017 killed three people and injured one, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. The largest sectarian attack in Punjab in 2016 targeted Christians (see Christians). While violence can occur in any part of Punjab, DFAT assesses that Shi’a in Lahore and Islamabad face a low risk of sectarian violence.
3.107. According to the SATP, six incidents of sectarian violence in Balochistan in 2017 killed 38 people and injured 37, and four incidents of sectarian violence between 1 January and 6 May 2018 killed six people and injured two. DFAT assesses that Balochistan has a low level of sectarian violence, within the context of a moderate level of overall violence. Shi’a do not face a higher risk of violence because of their sectarian affiliation, with the exception of the visually distinct and geographically segregated Hazara Shi’a who face higher risk. Balochistan has historically suffered from ethno-sectarian tensions and politically motivated violence, including violence from an active separatist movement. There is a large Hazara Shi’a population in Quetta, the provincial capital, which has historically been a target for sectarian violence. Militants also target Shi’a travelling through Balochistan to the Iranian border. The number of casualties from sectarian violence in Balochistan has fallen since the introduction of the NAP and Operation Zarb-e-Azb
3.108.The population of Khyber Pakhtunkhwa is mostly Pashtun and predominantly Sunni. Most Shi’a live in Hangu, Kohat, Peshawar and Dera Ismail Khan. Most Shi’a in Peshawar are long-term residents of the Old City, while many Shi’a in Hangu, Kohat and Dera Ismail Khan are Turi or Bangash Shi’a from Kurram and Orakzai agencies. Similar to other parts of Pakistan, Khyber Pakhtunkhwa has seen a significant reduction in militant violence in recent years. According to the SATP, one incident of sectarian violence in 2017 killed three people, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. Overall, DFAT assesses that Khyber Pakhtunkhwa has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province.
3.109.Most Shi’a in districts in the former FATA live in Kurram and Orakzai agencies. Shi’a comprise around 40 per cent of the population of Kurram Agency; Upper Kurram Agency is estimated to be around 80 per cent Shi’a, while central and lower Kurram Agency is majority Sunni. Most Shi’a in Kurram Agency are from the Turi tribe, particularly in Parachinar (see Turis). The Bangash tribe is around 40 per cent Shi’a, and lives mainly in Orakzai Agency as well as parts of Khyber Pakhtunkhwa such as Kohat, Hangu and Peshawar.
3.110. Despite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal. According to the SATP, two incidents of sectarian violence in the former FATA in 2017 killed 92 people and injured 300, while no incidents of sectarian violence occurred between 1 January and 6 May 2018. In 2017, militants carried out several attacks in the Shi’a-majority city of Parachinar.
On 21 January 2017, a bomb exploded in a crowded market, killing 25 people and injuring dozens more. Lashkar-e Jhangvi (LeJ) and the TTP claimed responsibility, saying they were responding to the death of LeJ leader Asif Chotu and support by Shi’a for Syrian president Bashar al-Assad. According to Pakistani news outlets, this was the fourth time militants had targeted the same area of Parachinar in recent years.
On 31 March 2017, a suicide attack on a Shi’a imambargah killed at least 24 people and injured 100. Jamaat-ul-Ahrar claimed responsibility.
On 24 June 2017, two bombs detonated in a market busy with people preparing for Eid celebrations, killing 72 people and injuring more than 200. LeJ Al-Alami claimed responsibility for the attack.
3.111.DFAT assesses that Shi’a in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA.
3.112.Approximately two million people live in Gilgit-Baltistan, a sparsely populated autonomous region in the north. The population comprises Shi’a (approximately 39 per cent), Ismaili Shi’a (18 per cent), Sunnis (27 per cent), and Nurbakshis, who adhere to a Sufi tradition combining aspects of Shi’a and Sunni theology (16 per cent). The mountainous terrain, sparse (and majority Shi’a) population, and the fact that communities tend to live in isolation from each other mean that Gilgit-Baltistan has fewer violent incidents than other regions in Pakistan. DFAT is not aware of any sectarian attacks taking place in Gilgit-Baltistan between 1 January 2017 and 6 May 2018. However, Gilgit-Baltistan’s economy is less advanced and it can be hard for people of any faith, especially youth, to secure employment.
Prevalence of Document Fraud [45]
[45] DFAT Report @ 71
The DFAT report advises that document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as National Database and Registration Authority (‘NADRA’). It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[46]
[46] DFAT report @ p.42
More broadly, DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common. People have also been known to pay news organisations to publish false stories in newspapers.[47]
[47] Ibid

CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility

When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[48]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[49]
[48] s.5AAA Migration Act 1958.
[49] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[50] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[50] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[51] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

Applicant’s Refugee Claim
Relevant Grounds
[51] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

The applicant submits that his claims falls within the scope of s.91R(1)(a) of the Act by reason of his religion and his imputed political opinion as a Shia Muslim. The scope of ‘religion’ within the context of the Convention has been considered by the Federal Court in several cases including MIMA v Darboy[52] and Wang v MIMA.[53] In MIMA v Darboy the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’^[54]
[52] [1998] FCA 931 (Moore J, 6 August 1998).
[53] (2000) 105 FCR 548. Followed in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22].
[54] MIMA v Darboy (1998) 52 ALD 44 at 50, quoting Mason CJ and Brennan J in Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 at 135.
The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and will often depend on the motivation of the persecutor or in circumstances where fear is by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[55]
[55] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[56] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[57]
[56] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 ( per Hill, Whitlam & Carr JJ, 10 February 2000)
[57] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
In this case the applicant claims that he has been the subject of attacks and threatening behaviour by unknown sectarian groups as a result of his activities as a Shia Muslim. While the Tribunal has found that there is no real chance the applicant will be seriously harmed on his return to Pakistan it does accept that the applicant claim does fall within the scope of the grounds detailed in Article 1 of the Refugee Convention reason of his religion and imputed political opinion as a Shia Muslim.
In addition the Tribunal notes that the applicant has provided a psychological report dated 20 September 2018. While the applicant did not specifically raise any claim in relation to his mental health, it was open to the applicant to submit that his claim falls within the scope of the Refugee Convention by reason of his membership of a particular social group, specifically as a person suffering from mental health issues. It is necessary that as a result of the applicant’s membership of a social group that he share a certain characteristics or elements which unite him with a particular group which sets it apart from society at large. That is to say, not only must the applicant with his group exhibit some common element, it must unite them, making them a cognisable group within their society.[58]
[58] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
While the Tribunal is not convinced that the applicant’s mental health unites him with a particular group as required, nevertheless for the purposes of this decision the Tribunal accepts that he is part of a particular social group by reason of his mental health issues.

Applicant’s well-founded fear.

In Chan v MIEA[59] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[60]
[59] (1989) 169 CLR 379 at 396.
[60] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns toPakistan.
However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [61]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[61] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

In MIEA v Guo, the Court stated that:^[62]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[62] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Accordingly, the applicant claims that he is a person who has a well-founded fear of persecution, pursuant to s.91R(1)(a) of the Act by reason of his religion. He claims that in the event he is returned to Pakistan there is a real chance he will suffer serious harm by members of sectarian groups unknown to him by reason of his Shia Muslim faith.
In addition the applicant may have claimed that he is a person who has a well-founded fear of persecution, pursuant to s.91R(1)(a) of the Act by reason of his mental health by reason that he will not be able to obtain the necessary treatment in Pakistan.

100.The Tribunal accepts that the applicant fears harm due to his religious affiliation and imputed political opinion as a Shia Muslim. The Tribunal accepts that on a subjective basis the applicant fears harm from religious extremists in Pakistan such as Tahrik-e-Taliban Pakistan (TTP). It also accepts that the harm he fears equates to serious harm namely death if he does not convert or abide by demands of the TTP as claimed.
101.However, for the reasons expressed in this decision the Tribunal has found that the applicant does not have a ‘well found fear of persecution’ on an objective basis. Nevertheless, based on the applicant’s claims, the Tribunal does accept that the applicant has a subjective fear of being persecuted for a reason mentioned in s.91R(1)(a) of the Act.

Accepted Facts.

102.Based on the applicant’s evidence and the documentary evidence provided to the department and the tribunal by the applicant the Tribunal finds that:
(a)the applicant is a national of Pakistan.
(b)the applicant is a Shi’a Muslim, born in Karachi, in the Sindh province of Pakistan.
(c)the applicant qualified as an [Occupation] in Pakistan.
(d)the applicant was employed by [Employer 2] in Pakistan.
(e)the applicant was a volunteer for IMAMIA Students Organisation, a Shiite Muslim students' organisation in Pakistan and also the Shi’a Ulema Council.

The Applicant as a Shia Muslim.

103.In considering the applicant’s documentary evidence, country information and media reports provided in the applicant’s submission and available to the Tribunal, the Tribunal accepts that Shia Muslims are a minority in Pakistan and account for approximately 20% of the population.
104.The DFAT report notes that most Pakistani Shi’a are not physically or linguistically distinguishable from Pakistani Sunnis. However, it notes that they may be identifiable by common Shi’a names. In this case the applicant claims that he is identifiable as Shia by reason of his name. As such, based on the Country information the tribunal accepts that the applicant may be identifiable by Shia by reason of his name.
105.The DFAT report notes that there is no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector and that Sunni and Shi’a students attend the same public and private education institutions. The Tribunal notes that in this case the applicant was a graduate from the [University] and was employed by a major [employer].
106.In addition the DFAT report notes that Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. In this case the applicant claimed to be a member of the IMAMIA and the Shia Ulema Council in Pakistan. He confirmed that the two organisations are interconnected and that the Shia Council is a political based organisation. His evidence was however, that he was only involved in the charitable side of the organisation. The applicant experience therefore appears to be consistent to the DFAT report which assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation.
107.The DFAT report states that sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools. However, it notes that Shi’a traditionally represented a higher proportion of the casualties. Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ[63], 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. Accordingly, the Tribunal accepts evidence provided by the applicant and the available country information that Shia Muslims have faced targeted attacks in Pakistan.
[63] ‘Lej’ is the Lashkar-e Jhangvi a Sunni paramilitary terrorists group (see DFAT report @ p.21)as
108.However, the DFAT report notes that Karachi has historically experienced high level of violence to rival ethnic, sectarian, political, business and criminal interests. It notes that the National Action Plan and a visibly high presence of paramilitary rangers have led to significant reduction in violence, including sectarian violence. DFAT assess that a low level of sectarian motivated violence in Karachi exists within the context of a moderate level of overall violence.[64] Therefore, based on the country information, while the Tribunal accepts that there is a level of sectarian violence, it does not accept that it is systematic and discriminatory to a level that the applicant would be persecuted in the event that he returned to Pakistan.
[64] DFAT Report @ p.37
109.Accordingly the Tribunal finds that the is not a real chance the applicant would suffer serious harm by reason of being a Shia Muslim in the event that he returns to Pakistan
110.The Tribunal does not accept that the applicant’s voluntary work with IMAMIA Student organisation (ISO) or the Shi’a Ulema Council would be sufficient to make him high profile and as such targeted by extremists or the TTP. The Tribunal has considered the voluntary nature of the applicant’s role, the fact that it is part time and the fact that the organisation itself is made up of thousands of members of which the applicant would be one or many. The applicant did not provide any evidence to support his claim that he worked as [organisational task] within the organisation. In addition, there was no supporting evidence as to what his responsibilities involved. However, the applicants own evidence was that his role was shared and on a voluntary basis. His evidence was that he did whatever need to be done around the office which principally involved developing fliers, assist in distribution offunds and collecting and generating data. Therefore on the applicants own evidence he appears to be a general worker within the organisation rather than a person in a principal position. . Accordingly, the Tribunal finds that he did not have a high profile role within the organisation.
111.The Tribunal has considered country information before it which indicates that the IMAMIA is one of the largest student organisations in the country. Any Shia student can be a member. It is estimated that 50-70 per cent of all Shia students are members of the ISO, which operates in all four provinces.[65] The evidence provided by the applicant describing his voluntary work after he finished his paid employment did not support a person with a profile which would be significant enough to be targeted by extremists. While there are reports of members of the ISO have clashed with other student organisations[66], there is no evidence that the applicant has engaged in such activities or that he has a political profile within the organisation. The Tribunal considers voluntary work of 3-4 days a week for 2-3 hours at a time and without his name on public documents to be highly unlikely to attract the attention of extremists. This is further supported by the country information that indicates that IMAMIA Student organisation in general promotes unity amongst all Muslims so whilst the country information in general does present examples of Shia/Sunni violence and attacks against IMAMIA, the applicant himself does not have a profile which the Tribunal accepts is big enough to be targeted individually, nor does the association in general encourage attacks in that they do not promote sectarianism. As a result the tribunal finds that the applicant does not face a real chance of being seriously harmed by reason of his political profile as claimed.
[65] Amir Rana and Waqar Gillani (November 24, 2003). Iran not funding ISO: Shirazi. DailyTimes.com. Accessed 2007-09-10.
[66] ‘Student Groups Clash at KU,’ Daily Times 17 May 2016, ’ Tribunal has considered the claim that the applicant’s profile is enhanced by the fact that he is senior in the [work] sector and works with wealthy Shia clients. The applicant refers to the fact that Shia [work sector] employees have been killed and refers to the fact [in] March 2018 a former assistant to a senior [work sector worker] was shot dead by armed assailants.[67] However, the report referred to by the applicant does not state that the attack was linked to sectarianism. While the article states that the victim was the personal assistant to a [senior work sector worker], it does not report that he was attacked by reason of his employment.
[67] Statutory Deceleration of [the applicant] dated 11 October 2018 @ para 3, AAT File 1713641AAT@ f 47.
113.There was no evidence to support the applicant’s claim that extremist elements targeted people working in the [work sector] to extort money to fund their activities.[68] Therefore, while the Tribunal understands and accepts that access to [work-related information] was not available to any [work sector] employee[69] and as a [job position 3] he may have had access to [work-related information], based on the country information and the nature of the applicants evidence in relation to the demand for the names of clients of [Employer 2] it does not accept that he would have been targeted by sectarian groups by reason of his employment with [Employer 2]. Based on the available country information the Tribunal acknowledges that [work sector] and [organisations] have been targets of violence. However, the Tribunal does not accept that the applicant would be subjected to systematic and discriminatory conduct that would constitute persecution by reason of being a Shia Muslim. As such finds that there is no real chance the applicant will be seriously harmed in the event that he returns to Pakistan.
[68] Op Cit @ para 4
[69] ibid

The Applicant’s father’s shooting.

114.The Tribunal has considered evidence regarding the applicant’s father enhancing the profile of the applicant through his work [establishing organisations], fundraising for Shias and also as a retired [Occupation 2]. The applicant has claimed that his father was shot because of his connection to the applicant and his refusal to co-operate with the people who allegedly threatened him.[70] However, the applicant has not provided any evidence as to how the alleged attackers made the connection between him and his father, particularly as he was in Australia at the time of the attack. The applicant claims that the attack on his father was punishment for the applicant having left Pakistan. However, this reasoning appears illogical due to the fact that the applicant having left the country would be a vindication of the actions by those he says have threatened him. In addition the applicant claims that he believes his father was targeted due to his role in establishing a Shia charitable organisation and practicing in the Mosque every Friday. The applicant did not provide any evidence of his father’s involvement in the charitable organisation or that he attends the Mosque as claimed. As such the applicant’s claim in relation to his father appears to be mere speculation rather than based on any supporting evidence. While the Tribunal accepts that there is a level of sectarian violence in Karachi, it does not accept that it is systematic and discriminatory to a level that would indicate that the applicant or that his father has been persecuted as claimed.
[70] Statutory Deceleration of [the applicant] dated 11 October 2018 @ para 13, AAT File 1713641AAT@ f 46.
115.The applicant provided a photo of a person who appears injured lying in a bed who the applicant claims to be his father suffering from gunshot wounds.[71] The applicant did not provide the Tribunal with any documentation to support his evidence that the person in the phots was in fact his father. In any event, accepts that the person is the applicant’s father and that he was shot as claimed, there is no supporting evidence to suggest that he was targeted by a sectarian group as claimed. Rather, from the applicant’s evidence, he appears to have been the victim of the general violence that occurs in Karachi rather than a victim of a systematic and discriminatory attack as a result of his work with the [organisation] or as a Shia Muslim. The Tribunal notes that there is no evidence of any further attempts to harm the applicant’s father or his family being made. The Tribunal is of the view that if the applicant’s father was of interest to extremists either because of his own claimed profile or the applicant’s, then further attempts to harm him would have been made. The Tribunal is in receipt of evidence that the applicant’s father has relocated on several occasions. Copies of a sales agreement and tenancy agreements were supplied. However, these do not necessarily support the claimed attack or explain the reasons why he moved. As such, the Tribunal does not accept that the applicant’s father was shot at because of the applicant’s profile or his own and the Tribunal does not accept that the applicant’s father has a profile which would increase the applicant’s should he return to Pakistan. Accordingly the Tribunal finds that there is no real chance that the applicant will be seriously harmed in the event he returns to Pakistan by reason of his fathers enhanced profile as claimed

[71] AAT file 1713641 @ f41

Applicant as an investor in a [farm]

116.The Tribunal accepts that the applicant was an investor in a [farm] with a Sunni man called [Mr C] and that the business relationship ended badly. However, there is nothing before the Tribunal to support the view that extremists would be interested in targeting the applicant because of failed business dealings between a Sunni and Shia business associates that had previously had a strong working relationship and had been old school friends. The Tribunal does not accept that such an event would cause the applicant’s former business partner to report him to extremists who would then target the applicant. The applicant’s evidence in relation to this claim seems unlikely and farfetched and appears to be designed merely to embellish the applicant’s protection claim. Accordingly, the Tribunal finds that there is no real chance that the applicant will be seriously harmed by reason of his investment in a [farm] in Pakistan as claimed.

The threatening telephone calls, a letter and a shooting

117.The applicant’s claims that he was the target of threatening telephone calls and a targeted shooting. The applicant claimed that in March 2009 he received a phone call from a man who spoke Urdu with a strong Pashtu accent who threatened him with death unless he changes his religion and that the applicant reported the call to the police but they took no action and that he received four calls on his office line and mobile phone of a similar nature. The applicant’s evidence in relation to each of the threatening phone calls was vague and lacking in detail. While the applicant claims to have received the calls at work, he was not able to recall the time of the day he received the call. The phone calls were received some time apart without any evidence of the applicant having been threatened or being physically harmed. between each call. The details of the conversation as described by the applicant were very broad and made no reference to the applicant as a Shia Muslim, his work or his association with the IMAMIA.
118.Finally, the Tribunal’s finding that the applicant does not have a profile sufficient to make him a target of extremist organisations, four calls to the applicant stating he must convert seems illogical and farfetched. If the applicant had a profile and if the applicant was a target it seems unlikely that an extremist would call the applicant four times to tell him to convert or he will be killed. It would seem more logical that the applicant would be killed. The applicant claimed that he had changed [work location] and his route to work and the organisation because of his concern that he would be harmed. However, even having taken such precautions, if he was a target as claimed there would be little difficulty in finding the applicant as he continued to volunteer at the organisation, work for [Employer 2] and live at the same address. The Tribunal does not accept that the applicant received any requests to convert and as such, the Tribunal does not accept that the applicant tried to report this to the police. Therefore, in all the circumstances the Tribunal does not accept that the applicant will be seriously harmed by reason of having received the phone calls in the event that he returns to Pakistan.
119.The Tribunal does not accept that [in] December 2009 following voluntary work after a large funeral process the applicant was bashed with the butt of a gun by 4 people who told him to stop his work and that he again tried to report this to the police but no action was taken. The applicant has provided several inconsistent accounts of the incident. Initially the applicant stated at the previous Tribunal hearing that he was working that day at [Employer 2]. He then said he wasn’t and had the day off to assist with the funeral. The applicant then stated to the Tribunal at the hearing that he had been to a religious gathering and was on the way home. The applicant was asked if he received medical attention. The applicant confirmed he went to the hospital but has provided several inconsistent accounts. He stated at the first Tribunal hearing that he went in the morning and then he claimed that he went at night and then claimed that he stayed overnight although he did clarify he thought it was overnight. Nevertheless, at the hearing he claimed that he was found by some passers-by and taken to the hospital after the incident. The Tribunal accepts that given the passing of time there may be some inconsistencies in the applicant’s evidence. However, in the case of such a traumatic event, it does seem strange to the Tribunal that the applicant would provide contrasting statements in relation to the treatment of his injuries after the attack. It would have expected that such an event would have been clear in the applicant’s mind. .
120.Accordingly, the Tribunal does not accept the applicant’s claims. Finally, if the incident did happen (which the Tribunal has found it did not), there is no evidence to suggest that the phone calls and the claimed attack were part of a systematic and discriminatory threat to the applicant. Rather, given the length of time between the calls and the relative random nature of the attack upon the applicant they appear to be part of the general level of violence experienced in Karachi. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event he is returned to Pakistan by reason of him being attacked as claimed.
121.The Tribunal does not accept that [in] March 2013 the applicant was driving home from work with a friend when he was shot at by two men on a motorbike. He claims that the bullet went into the boot and through to the driver’s seat but he managed to get away and filed a police report about the incident. The applicant stated that there was an independent witness but that they did not want to give evidence in the matter. Nevertheless, the applicant’s friend who was in the car gave a statement which is to the applicant’s evidence. The applicant stated that he went to the police but that they would not allow them to make an FIR. The Tribunal does not accept this statement given the country information before the Tribunal indicates this is the type of situation where the police would make out a First Incident Report (FIR) and would compel the witness to provide evidence. The Tribunal finds that this claim further detract from the applicant’s credibility and as such finds that the shooting did not take place and the applicant’s claim is not credible. Whilst the Tribunal notes that the applicant has provided an FIR to support this claim, the mere existence of an FIR does not confirm that event took place but rather that an incident was reported. As such the Tribunal finds that there is no real chance that the applicant will be seriously harmed in the event he is returned to Pakistan.
122.The Tribunal has considered the applicant’s claim that in June 2012 he received a threatening letter from the Tahrik-e-Taliban Pakistan (TTP) demanding he change his religion and that he give them with a list of rich Shia business men from [Employer 2]’s database or he would be killed. Whilst the applicant stated in his protection application that this came in the form of a letter, the applicant stated at hearing that this request was also made over the phone. He stated that the letter detailed the location of where the applicant attends school and stated they knew where the applicant works and again threatened him if he didn’t fulfil their needs. The applicant claims he transferred to another [work location] in Karachi. The applicant explained the several relocations to [work locations] that he made on the bases of the letter and threatening phone calls and does not accept that [work location] transfers would necessarily support the claimed fears that applicant had. Furthermore the Tribunal considers that such requests of personal contact details, as the delegate also put to the applicant are highly unlikely and that if extremists wished to obtain inside information on high net individuals then they would go to their own sympathisers within [Employer 2]. Given the credibility findings above and the inconsistencies in the manner in which the threat was made to the applicant, the Tribunal does not accept that the applicant received a letter or phone call from the TTP as detailed above or that his transfer to different [work location] in [Employer 2] was motivated by fear of the TTP. As a result the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he returned to Pakistan by reason of having received the latter as claimed.
123.The applicant stated that the person on the end of the call asked for contacts details of [Employer 2]’s customers who were Shia businessmen. The Tribunal asked if the applicant if the caller provided any name or detail as to where he was to send the information. The applicant claimed that he was abused and told to listen and then they hung up. He said that he was scared and had no time to get any details. The Tribunal finds the applicant’s explanation to be highly unlikely in circumstances where such information would have been essential for him to have carried out the instruction of the caller. Given the inconsistencies in this claim from the applicant’s initial application to his oral evidence and then the implausible account of the threat which contained no specific details of delivery of the information, the Tribunal finds that these claims are not credible.
124.The Tribunal has considered the applicant’s claim that his father received a death threat in a telephone call in April 2015 and had previously tried to lodge an FIR with the police and as a result of having receiving no support took the matter to court. The applicant provided a copy of a Court Order dated [May] 2015.[72]The applicant’s father did not provide any supporting evidence to the Tribunal in relation to the applicant’s claims.
[72] AAT file No1414141 @ f.66
125.First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report. It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his or her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR.[73] In the event that a FIR is not registered a person may:[74]
[73] First Information Report (FIR) (A Guide for Citizens), Centre for Peace Development Initiatives Pakistan (CPDI-Pakistan), ibid

(a)meet the District Police Officer (DPO) or Capital City Police Officer (CCPO) or other higher officers like Deputy Inspector General (DIG) of police and Provincial Police Officer (PPO) and bring your complaint to their notice.
(b)send thier complaint in writing and by post to the DPO, CCPO, DIG or PPO concerned. If the DPO, CCPO, DIG or PPO is satisfied with your complaint, he shall order the registration of FIR.
(c)file a complaint to the District Public Safety and Police Complaints Authority in your district.
(d)file a private complaint before the court having jurisdiction.

126.The applicant claims that his father made a report to the police concerning the incident, but they failed to support him as a result he took the matter to court. The Tribunal notes the country information that reports that FIR’s are relatively simple to make and that they are not considered evidence of the event having actually occurred.[75] The court order merely provides that the police simply to record the incident. The order does not make any order or statement that the facts detailed in the order, and as alleged by the applicant’s father to the court, are true and correct. The incident described in the order is so vague and lacking in detail that it would be impossible for the police to investigate the matter. The order merely refers to the fact that the applicant’s father alleges to have received a threatening phone call from an unknown person who allegedly asks how long he was going to continue to hide and keep shifting. The circumstances of the phone as described in the order seem so unlikely, that the Tribunal does not accept that the incident occurred.
[75] DFAT Report @ p.37
127.Therefore, in such circumstances where the FIR and the Court order are not evidence of the incident having occurred and without any supporting evidence in relation to the applicant’s claim, the Tribunal does not accept that the applicant’s father received a threatening phone call as claimed.
128.Accordingly, the Tribunal finds that the there is no real chance the applicant will suffer serious harm in the event he is returned to Pakistan by reason of the threats.
Applicants Mental Health
129.The Tribunal provided psychological reports dated [November] 2013[76] and [September] 2018.[77] The applicant did not specifically raise any claim in relation to his mental health but it was open to him to submit that there is a real chance that he will be seriously harmed in the event that he is returned to Pakistan by reason of his mental health.
[76] Department File [number] @ f.121;
[77] AAT file 1713641 @ f.65
130.A report by [Mr A], Registered Psychologist dated [November] 2013 [78] conclude that the applicant is suffering for Post-Traumatic Stress Disorder (PTSD) Adjustment Disorder and Mixed Anxiety and Depression, but notes that it will be adequalty hndled and approariately treated in apprximatley 8-12 months. The Psychological Report by [Psychology service provider] dated [September] 2018[79] concludes that the applicant’s symptoms met the criteria of Dysthymic Depression and Generalised Anxiety. The report suggests that the applicant complete a psychiatric assessment for his mediation needs receive ongoing psychotherapy for his mild depression and anxiety, engage in sicoal and recreational activities to bring balance to life, engage in mental and cognitive activites for increased mental stimulation and practice memory based and problem solving activities.
[78] [Mr A] Registered Psychologist Certificate of Absenteeism from [Course] dated [November] 2013; Department File [number] @ f.118
[79] Psychological Report by [Psychology service provider] dated [September] 2018 AAT file 1713641 @ f65.
131.The Tribunal accepts that the applicant is suffering from PTSD, depression and anxiety as claimed in each of the reports. However, the Tribunal notes that there is no evidence that his mental condition has prevented him from working and living a normal life while in Australia. The report dated [September] 2018 refers to the fact that applicant presented himself in his work uniform. The Tribunal notes that the uncertainty of his visa staus may cause the applicant stress and may contribute to his mental health condition.
132.It may have been open to the applicant to submit that his mental health condition is such that it would amount to persecution by threatening his capacity to subsist. That is he would not be able to obtain adequate treatment to the point there is a real chance he will be seriously harmed through the denial of basic access to services upon his return to Pakistan..
133.Healthcare in Pakistan is administered mainly in the private sector which accounts for approximately 80% of all outpatient visits.[80] The public sector was until recently led by the Ministry of Health. However, the Ministry was abolished in June 2011 with the Ministry of National Regulations and Services was being established in April 2012.[81]
[80] Khan, Ahmed. ‘Pakistan Economic Survey 2010-11: Health and Nutrition.’ Government of Pakistan, Ministry of Finance, nhsrc.gov.pk
134.An article for the Express Tribune dated [May] 2015[82] noted that for a population of 180 million, there are only five psychiatric hospitals in the country. However, it did note that several big private hospitals, including Aga Khan University Hospital (AKUH), have psychiatric wards for mental health patients. The AKUH in Karachi has a psychiatry department which includes six full-time psychiatrists and two full-time psychologists, in addition to two part-time psychiatrists and one part-time psychologist. In addition, Karwan-e-Hayat has a 100-bed inpatient hospital in Keamari, Karachi, which also has an outpatient department (OPD), pharmacy, rehabilitation services department and a separate ward for male and female patients, and a community psychiatry centre in Korangi, Karachi, which has an OPD, pharmacy and rehabilitation centre. They also run the Jami Clinic in Punjab Colony, Karachi, which includes an OPD and pharmacy.
[82] The Express Tribune Magazine ‘Mental health care: Mind matters,’ by Komal Anwar dated 24 May 2015;
135.The article[83] reports that several non-governmental organizations (NGOs) have been actively providing care to mentally ill patients at subsidized rates or no cost at all. Pakistan Association for Mental Health (PAMH), established in 1966, set up a free depot line clinic in 2002 in Karachi, offering free of cost outpatient services, such as psychiatric consultation, psychotherapy and psychological assessment. The NGO has been providing consultation, medicines, meals and rehabilitation services free of cost or at subsidised rates since 1983.
[83] Ibid
136.Therefore, while the Tribunal accepts that the mental health facilities in Pakistan are not ideal, from the available country information it finds that the applicant will be able to access treatment for his diagnosed mental health issues. There is no evidence to suggest that as a citizen of Pakistan and as a Shia Muslim that he will be denied access to the available mental health facilities on an equal basis with other citizens of Pakistan. There is no evidence to suggest that the Pakistan state has demonstrated systematic and discriminatory conduct towards the applicant or people with mental illness. In fact, while the country information indicates that medical services are under resourced in Pakistan, the Tribunal notes that there is no evidence to suggest that this is as a result of any systematic or discriminatory conduct by the State.
137.Given that the Tribunal has found that the applicant would not be denied mental health care, it follows that it does not accept that he will face a denial of basic services such that it would threaten his capacity to subsist in Pakistan.
138.The Tribunal does accept there may be some societal discrimination the applicant may suffer by reason of his mental health. However, given a coordinating body exists to oversee public education and awareness campaigns on mental health and mental disorders in Pakistan[84] the degree of mental illness and the recognition by the authorities, the Tribunal does not accept that such discrimination will amount to serious harm.
[84] WHO-AIMS REPORT ON MENTAL HEALTH SYSTEM IN PAKISTAN these reasons the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Pakistan. Accordingly, it finds that there is no real chance the applicant will suffer serious harm under s.36(2)(a) of the Act by reason of his mental illness upon his return to Pakistan.
140.Having regard to all the circumstances and findings above, considered individually and cumulatively and having considered Article 1A(2) of the Convention and s. 91R of the Act alongside the available country information, the Tribunal finds that there is no a real chance the applicant will suffer serious harm for any convention reason. That is, the Tribunal finds that he does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason, and therefore does not have a well-founded fear of persecution.

141.As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
142.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for these purposes.
143.The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. The applicant claims that he has been threatened and harassed by unknown members of sectarian group due to him being a Shia Muslim and as a result of his involvement with the IMAMIA and the Shia Ulema Council in Pakistan. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[85] Therefore, based on the findings above, the Tribunal finds that there is no real risk that the applicant will suffer significant harm from anyone in Pakistan as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
[85] MIAC v SZQRB [2013] F CAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
144.Accordingly, the Tribunal finds that the there is no real risk the applicant will suffer significant harm in the event he is returned to Pakistan by reason of any threats received by extremist elements as a result of him being a Shia Muslim and a member of the IMAMIA and the Shia Ulema Council in Pakistan. In addition for the reason expressed above the Tribunal finds that there is no reasl risk that the applicant will be significantly harmed upon his return to Pakistan by reason of his father profile, as an investor in a [farm] or by reason of his mental health condition. At no stage did the applicant advance any other reason, in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
145.At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
146.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no 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 he will suffer significant harm as required by s36(2)(aa).
CONCLUSIONS
147.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) the Act.
148.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).
149.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
150.The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell
Senior Member

[2019] AATA 6702

3 October 2019

Key Legal Topics

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Immigration

Administrative Law

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Procedural Fairness