1714710 (Refugee)

1714710 (Refugee) [2019] AATA 6401 (10 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714710
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Christopher Smolicz
DATE:10 September 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 10 September 2019 at 3:41pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Ismaili Muslim – imputed political opinion – member of the Aga Khan Social Welfare Board of Pakistan (AKSWB) – particular social group – failed asylum seeker from Australia who will be perceived be a wealthy – revenge from Sunni extremists – kidnapping of child – credibility concerns – vague and inconsistent evidence – psychological condition – isolated opportunistic act – sectarian-related violence – improved security situation in Pakistan – complementary protection – psychological health and lack of medical recourses – level of protection offered by the receiving country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant) and second named applicant are husband and wife. They were born in Sindh Province Pakistan. They first travelled to Australia in the [period] January 2011 [to] April 2011 as holders of tourist visas to visit their [children] who were studying in Australia at the time. The applicants returned to Australia [in] July 2014 and applied for a protection visa on 25 July 2014. The second named applicant did not make her own claims for protection and is applying for the visa as a member the family unit. The delegate refused to grant the visas on 21 June 2017.
The applicants appeared before the Tribunal on 10 April 2019 to present evidence and arguments in support of their claims. The applicants provided the Tribunal with a copy of the delegate’s decision record.
The Tribunal was provided with a psychological assessment confirming the applicant is suffering from an adjustment disorder with depression. The applicant reported that the immigration matter was creating significant stress. The Tribunal questioned the applicant at the commencement of the hearing about his mental health and gave him the opportunity to adjourn the hearing when he wanted a break. The applicant said he was able to take part in the hearing and the only medication he was taking was for his blood pressure.
The Tribunal was able to observe at the hearing that the applicant appeared to have difficulty focussing and answering questions and had a tendency to speak around subjects and repeat certain details without addressing the crux of the information requested. His evidence was at times vague, lacking in detail and inconsistent with his original claims. The Tribunal raised these concerns with the applicant and asked if he wished to continue with the hearing. The applicant maintained that he wanted to continue with the hearing. The Tribunal noted the applicant’s response but decided to adjourn the hearing to enable the applicant to speak to his agent about the Tribunal’s concerns and obtain an updated psychological report.
The Tribunal listed the matter for a second hearing on 9 July 2019. The Tribunal was provided with an updated psychological report dated 22 April 2019. The report confirmed that the applicant was diagnosed with an adjustment disorder with depression and that the past traumatic events experienced in Pakistan have greatly increased the applicant’s fear and anxiety about the possibility of having to return. The report states that a further mental health examination was carried out on 16 April 2019 which was indicative of normal cognitive functioning. The report concluded that the applicant experienced stressor induced anxiety and low grade panic during the tribunal hearing with the possibility that it confused his responses. It was recommended that support people be present during the hearing, if permissible.
The Tribunal has had regard to the psychological report and enabled the applicant to repeat his claims and evidence at the second hearing. The applicant’s [child] ([Child A]) and his wife were present throughout the second hearing. The applicants were also represented in relation to the review by their registered migration agent. The Tribunal finds that the applicant was able to respond to questions and meaningfully participate in the second hearing. In assessing the applicant’s evidence the Tribunal has taken into consideration the applicant’s psychological condition.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No. 56, made under s.499 of the Act, the Tribunal 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Issues
The issue in this matter is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·     he belongs to the Aga Khan Shia Ismaili religious sect (Shia Ismaili Muslim)
·     he was involved with the Aga Khan Social Welfare Board of Pakistan (AKSWB)
·     he fears he will be perceived to be a wealthy businessman returning to Pakistan from a Western country
·     he fears revenge from Sunni extremists who were involved in the abduction of [Child B].
Summary of substantive claims
The applicant declared that he belongs to the “Shia Ismaili Aga Khan sect” which is a minority Shia group in Sunni dominated Pakistan.
As a follower of Ismaili Shia faith he was a member of the AKSWB and was involved in charity and social promoting and strengthening his religious ideology. In support of his evidence the applicant provided a copy of his AKSWB membership card.
He claims Ismaili Shia are targeted by Sunni extremists and criminal gangs because they are considered to be educated and wealthy people.
He fears Sunni extremists such as the Taliban, TTP, SSP and LeJ who are traditional enemies of the Shia Ismaili. He claims that due to the rise of ISIS in Pakistan, Shias, particularly the Ismaili face particular harm.
He claims that he left Pakistan to save his life because “Pakistan is now infested with terrorist groups which survive on extortion and other illegal activities”.
Kidnapping of [Child B]
The applicant declared that in 2014 his [children] [Child B] and [Child A] travelled to Pakistan from Australia to attend a wedding. [In] March 2014 [Child B] was on his way to visit a friend at [university] and was kidnapped by a Sunni extremist group affiliated with the Taliban.
[Child B] was abducted at gunpoint, blindfolded and taken to an unknown location. The kidnappers threatened to kill him if his family did not pay a 5 million rupees ransom (about $50,000 AUD). He was abused and beaten until he gave the assailants the applicant’s telephone number. At about 4 pm the assailants telephoned the applicant and told him to bring the ransom money to [Location 1].
The applicant contacted his wife and [Child A]. He also spoke to family friend [Mr C] and his father-in-law. It was decided that he should contact the police. The police advised him to go with the money and he would be accompanied by police dressed in plain clothes who would catch the kidnappers.
At about 6 pm the applicant, [Mr C] and [Child A] went to [Location 2] and reported the matter to the police and lodged a First Information Report (FIR).
It took time for the applicant to organise the money. He borrowed money from [Mr C] and his father-in-law and used his business as security for the loan.
The applicant attended at [Location 1] and was approached by two men who demanded the ransom. The police intervened and the kidnappers started firing gun shots.
The police shot one of the kidnappers and arrested the other. The kidnapper was interrogated and told the police about [Child B]’s location. The police subsequently attended at the second location and were able to release [Child B].
[In] May 2014 the applicant claims he received a telephone call from an unknown number when he was working on his [workplace]. The caller threatened the applicant because one of their group was shot by the police. He continued to receive the calls at random times on about four to five occasions.
[The next day] he went to the police and lodged a second FIR and tried to seek their assistance. This time police demanded that he pay them a bribe because they claimed that they secured the release of [Child B] without him having to pay the ransom money.
The applicant realised the police would not help him and feared they would be angry because he refused to pay them any money. He decided to keep a low profile and sell his [business].
The applicant believes that if he returns to Pakistan the kidnappers will take revenge and kill him and his family because the police killed one of the gang members during [Child B]’s rescue and other gang members were arrested.
He fears he will have to live in constant fear and constantly move around to avoid assailants. He will not be able to work anywhere in Pakistan since the Taliban activists can harm him even if he moves out of his area.
He claims the authorities in Pakistan will not protect him and his family in Pakistan because the authorities, including the police, are extremely corrupt and work with terrorist groups. He claims the police often inform the terrorist groups after receiving complaints from the public and the terrorists kill complainants in revenge.
In support of his evidence the applicant provided a letter from a person who purports to be his lawyer in Pakistan enclosing a copy of the FIRs dated [March] 2014 and [May] 2014, documents relating to the sale of his business in Pakistan, a statement from [Mr C] and statements from his [children] [Child B] and [Child A].
The delegate
The delegate did not find the applicant to be a credible witness. He found that his claims were inconsistent and lacked detail and were not supported by persuasive documentary evidence. The delegate had regard to an FIR provided by the applicant in support of his claims. The delegate had regard to the content of the documents and country information regarding document fraud in Pakistan and found they were not genuine.
Tribunal hearing
The Tribunal questioned the applicant about the FIRs. The applicant claimed that on [date] he made the reports to the police after he received a telephone call on his mobile telling him his [Child B] was kidnapped and demanding a ransom. The police told him to attend with the ransom money and they would be in disguise.
According to the translated FIR dated [date] the applicant claims he attended with the ransom money and the police fired their weapons at the kidnappers. One kidnapper was killed and one arrested.
At the hearing the Tribunal asked the applicant to provide details of what he saw during the shooting. The applicant said he did not see anyone being shot and the police told him that one person was killed but he is not sure.
According to the FIR the applicant declared that one of the arrested kidnappers told the police where [Child B] was being held ([Location 3]). They attended and one of the accused fired at them but they were able to rescue [Child B].
The applicant declared in the FIR that three accused were arrested by the police and brought to the police station and disclosed that they were “Taliban activists” and provided their names. When questioned how he knew all the details about the kidnappers and their names which he declared to the police in the report, the applicant said that he was not present when [Child B] was rescued and he knew the details because the police told him.
The Tribunal notes that the FIR states that it is a ‘word for word’ statement of the complainant (the applicant) and that it was read to him and he admitted it to be true and correct. The Tribunal finds unusual that the applicant would provide a detailed FIR regarding the kidnapping of [Child B] and no report or statement was made by [Child B] who was the victim in the kidnapping. The Tribunal also finds it unusual that the applicant would be making a report to the police about incidents which he claims he did not witness. When questioned at the hearing the applicant said that [Child B] was too shaken to provide reports.
The Tribunal asked the applicant what injuries [Child B] sustained during the abduction. The applicant said that they were minor and [Child B] did not require medical attention. The Tribunal finds the applicant’s evidence about [Child B]’s injuries inconsistent with the evidence he (the applicant) provided in his protection visa application when he declared at question 45 that “[Child B] was abused very badly and was in unconscious state due to server beatings”.
The Tribunal also notes that at question 45 of his protection visa application the applicant said that [Child B] was released after he paid a bribe to the police. The Tribunal questioned the applicant at the hearing whether he had to pay a bribe to the police to help secure the release of [Child B]. The applicant said that he had to pay the police a 10,000 rupees bribe to get them to rescue [Child B]. The Tribunal finds in his declaration dated 27 March 2019 the applicant provided no details about paying a bribe to the police on [date] to secure their assistance to rescue [Child B]. To be clear, the Tribunal finds that the applicant did not have to pay any bribe to the police in Pakistan.
The Tribunal questioned [Child B] about his abduction. The Tribunal found [Child B]’s evidence was of limited assistance. His evidence was vague and lacking in detail. He could only provide limited information about his kidnapping and had to be prompted by the Tribunal about his evidence.
The Tribunal asked [Child B] at what time he was kidnapped, he stated that he left home in the morning. He subsequently said he could not recall but thought it was 11.30 am or 12.30. After further questioning he said he left home at 9.30 am and was kidnapped at 14:00 hours. When asked if he completed an FIR he gave conflicting information. At first he said that he did provide a report. After further questioning he said he gave the information to his father who made the report.
[Child B] told the Tribunal that he applied for a protection visa in July 2014 soon after he returned to Australia. He was subsequently granted a [skilled] visa and withdrew his protection visa application in May 2016 before it was assessed by the department. The Tribunal was able to obtain [Child B]’s protection visa application from the Department and finds that the applicant’s evidence is consistent with [Child B]’s claims for protection.
Findings
Although the Tribunal found aspects of the applicant’s evidence vague and inconsistent the Tribunal accepts that the applicant’s psychological condition may have had an impact on his ability to recall facts and give evidence.
Revenge from Sunni extremists
In assessing the applicant’s claims the Tribunal has had regard to DFAT’s country information report which confirms that “kidnapping is common in parts of Pakistan. While in some cases kidnapping is associated with family and domestic disputes, it is also a tool linked to security and/or political agendas.”[1]
[1] DFAT Country Information Report 20 February 2019 [2.9]
The Tribunal has had regard to country information and accepts that terrorist groups in Pakistan are involved in kidnapping to procure ransoms that fund their violent activities. Reports also confirm that terrorism financing through kidnapping has declined since government operations in FATA reduced militant activity there as part of Operation Zarb-e-Azb between about 2014 and 2016. The end of that operation has seen kidnappings re-emerge in large cities, including Karachi, which has long been associated with this type of crime.[2]
[2] ‘Pakistan Security Assessment 2017’, Journal for Conflict and Security Studies, Pakistan Institute for Conflict and Security Studies, p. 64 to 65, CIS7B83941229
In the circumstances the Tribunal is prepared to accept that [Child B] was kidnapped in [year] by the Pakistani Taliban. The Tribunal accepts that the applicant was able to secure the release of [Child B] with the assistance of the police. The Tribunal is also prepared to accept that the applicant received some threatening phone calls in May 2014 before travelling to Australia. In the circumstances the Tribunal did not consider it necessary to take evidence from the witnesses in Pakistan ([Mr C] and [Mr D]) regarding the abduction of [Child B].
The Tribunal finds that [Child B] was living in Australia with his wife and briefly returned to Pakistan when he was kidnapped on a public street soon after he returned to Pakistan. He did not know his kidnappers. The kidnappers had no connection with the applicant. Having considered the country information the Tribunal finds it was an isolated opportunistic act by terrorists who were seeking revenue to fund their operations. The Tribunal finds that the applicant and his family have were not involved in any legal proceedings associated with the kidnapping. The telephone threats ceased when he departed Pakistan in July 2014. The applicant has now sold his [business] and has been living in Australia for about five years. The terrorists who abducted [Child B] have had no further contact with the applicant or his family. The applicant’s [children] are now Australian permanent residents. The third [child] is a resident in [Country 1]. For these reasons, the Tribunal finds that there is no real chance that the Sunni terrorist group who were involved in the abduction of [Child B] would remember the applicant and seek revenge for the police shooting and arrest of members of their group.

Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm from the terrorist group who kidnapped [Child B] if he was to return to Pakistan.
Shia Ismaili Muslim
Next the Tribunal has considered the applicant’s claim that he fears harm in Pakistan because he is a Shia Ismaili Muslim who was involved with the AKSWB. The Tribunal has considered the claims individually and cumulatively.
Media reports provide the following information on Shia Ismaili Muslims in Pakistan:
Ismailis are seen as a reformist sect and more liberal in their interpretations of the Quran than other strains of Islam. In some ways, they are: the 48th Ismaili imam, Aga Khan III, made it optional for women to cover their hair in public. The vast majority of Ismaili women do not wear a hijab.
The Ismailis are a natural target for groups like Jundullah, whose ideological bread and butter is the intimidation (if not extermination) of progressive Pakistanis.
While not necessarily accurate, Ismailis seem to be perceived by certain critics as Westernized. A cursory Google search of Ismailism brings up a slew of message-board postings asking rhetorical questions like, “Why do Ismaili women dress so slutty?” Commenters speculate that all Ismailis drink like fish (the Quran forbids imbibing); that they hold the opinion of the Aga Khan above the teachings of Muhammad; that they are all rich and politically influential and enamored with “Western lifestyles.”[3]
[3] Why terrorists are targeting Pakistan’s Ismaili community, May 15, 2015 >
Reports confirm that Ismaili Muslims are a minority Shia sect in Pakistan that have been targeted by extremists in the past.[4] A terrorist plot against an Ismaili place of worship in Gilgit-Baltistan was foiled by police in January 2017.[5] In May 2015, gunmen boarded a bus and killed 47 Ismailis in Sindh.[6] Eight perpetrators, including an Islamic State leader, were subsequently sentenced to death.[7] The Tribunal has had regard to country information and finds that no Ismailis were killed in 2016[8], 2017[9] or 2018.[10]
[4] ‘Karachi bus massacre: Who are the Ismailis?’, BBC News (United Kingdom), 13 May 2015, CXBD6A0DE19343
[5] ‘RAW-funded anti-CPEC plan foiled in Gilgit, claim police’, Dawn (Pakistan), 19 January 2017, CXC90406612394
[6] ‘PIPS Pakistan Security Report Special Report 2016’, vol. 9, no. 1, Spring 2017 (Jan – June), p. 112, CISEDB50AD63; ‘Annual Security Report January – December 2016’, Center for Research and Security Studies (Pakistan), 21 March 2017, p. 67, CISEDB50AD3636. See also media report with lower initial death toll ‘43 killed in attack on bus carrying Ismailis in Karachi’, Dawn (Pakistan), 14 May 2015, CXBD6A0DE6290
[7] Tracing a terrorist: Daesh Pakistan chief among 8 to be executed’, Geo TV (Pakistan), 28 December 2016, CX6A26A6E15706
[8] ‘Annual Security Report January – December 2016’, Center for Research and Security Studies (Pakistan), 21 March 2017, p. 67, CISEDB50AD3636
[9] ‘Major incidents of terrorist violence in Pakistan 2017 to 8 Oct 17’, South Asia Terrorism Portal, 8 October 2017, CISEDB50AD5972
[10] The Pakistan Institute for Peace Studies annual security report for 2018 lists Shias, Ahmadis, Christians, Sikhs and Hindus as being the victims of violence against religious minorities and does not mention Ismailis. ‘Pakistan Security Report 2018’, Pakistan Institute for Peace Studies, 6 January 2019, pp. 59–61, 20190121110758
The Tribunal further notes that the Shia Ismaili spiritual leader, Aga Khan IV, visited Pakistan in December 2017 to meet a large congregation of followers to celebrate the community’s Diamond Jubilee which marked 60 years of spiritual leadership of the Shia Ismaili Muslim community. The spiritual leader was greeted by Pakistan’s Foreign Minister Khawaja Asif and was scheduled to meet with President Mamoon Hussain, Prime Minister Shahid Khaqaan Abbasi and several other government leaders.[11]
[11] >
The Tribunal has regard to the country information and finds that the government of Pakistan is supportive of Shia Ismaili Muslims and has provided its followers with state protection and attacks on Shia Ismaili Muslims have declined significantly in recent years. Having considered the country information the Tribunal finds that Shia Ismaili Muslims face a low level of violence and insecurity in Pakistan.
Next the Tribunal has considered the particular profile of a Shia Ismaili Muslim who was a member of the AKSWB. The applicant provided a membership card claiming he is a member of [a specified forum]. The Tribunal accepts the applicant took part in Ismail cultural events and was a member of [a specified forum].
The Tribunal was able to locate the online information which states that the “mandate of AKSWB is ultra poverty, differently-abled people, family harmony, drug abuse, women’s development, and one of the mandates is senior citizens. The board wants to establish recreational centers ...”[12] Recent online reports confirm that the “four young Ismailis from Pakistan have been appointed onto the 33-member National Youth Council (NYC) recently established by the Prime Minister of Pakistan, Imran Khan. The council’s mandate is to work for the upliftment of Pakistani youth and influence national policy and decision-making.”[13]
[12] see also >
The Tribunal finds that the applicant was an ordinary member of the AKSWB [in specified forum]. He also worked as [occupation] and had no involvement in politics in Pakistan. Country information confirms that AKSWB’s social operations have the support of the Pakistan government. The Tribunal also finds that the applicant has not experienced any direct harm in the past because he is a Shia Ismail Muslim or because of his membership in the AKSWB. The Tribunal finds that there is no connection between the applicant’s Shia Ismaili religion and membership of AKSWB and the abduction of [Child B]. As detailed above the Tribunal found the abduction of [Child B] was a random opportunistic criminal act. There is no evidence to suggest [Child B] or the applicant were specifically targeted by the terrorists in 2014.
In the circumstances, looking to the reasonably foreseeable future, the Tribunal finds that it is mere speculation to suggest that the applicant as a Shia Ismaili Muslim will face persecution in Pakistan from extremist groups.
In relation to the Shia population in general, DFAT assesses that most Shia in Pakistan face a low risk of sectarian violence. This risk can however vary depending on geographic location and for members of specific groups such as Hazaras and Turis. High profile Shia Muslims face a moderate risk of violence, as they are more likely to be targeted.
In assessing the applicant’s claims the Tribunal has had regard to recent country information regarding Shia Muslims referred to by the UK Home Office in January 2019[14] which reports that sectarian violence has been on the decline in Pakistan. In particular the UK Home Office had regard to the following reports:
·     The US Department of State Country Reports on Terrorism 2017 noted ‘The Pakistani government and military continued high-profile efforts to disrupt terrorist attacks and eliminate anti-state militants.’[15]
·     The US Commission on International Religious Freedom (USCIRF) noted in its annual report, covering 2017 events ‘[…] there have been some positive developments in recent years, especially the decrease in targeted killings of Shia Muslims in Karachi in the aftermath of the law and order operation launched by the Army Rangers and city police in 2011. Further, the government has encouraged and facilitated intrareligious conferences that seek to bridge the growing sectarian divide in the country.’[16]
·     Federal and provincial governments undertook extensive security planning during Ashura commemorations in 2017 and 2018 and implemented a strong security presence to protect Shias during this period.[17] Security was provided in Karachi during a protest demanding the recovery of disappeared Shia Muslims.[18] Strict security measures were also put in place for the Shia Muslim observance of Chelhum.[19]
[14] UK Home Office Country Policy and Information Nots Pakistan Shia Muslims, January 2019 USSD ‘Country Reports on Terrorism 2017’, (Pakistan), 19 September 2018
[16] USCIRF, ‘Annual Report 2018’, (Conditions for Shia Muslims), 28 April 2018
[17] The News International, ‘Muslims mark Ashura across Pakistan’, 22 September 2018,
[18] Daily Times, ‘Mourners seek return of missing Shia Muslims’, 7 June 2018
[19] Dawn, ‘Province-wide ban on pillion riding for chehlum security’, 29 October 2018
The Tribunal has had regard to statistics compiled by the South Asian Terrorist Portal on the number of Shia deaths in Pakistan since 2001. The Tribunal notes that number of deaths has significantly decreased in 2018 from previous years. For example, in 2017 the number of Shia deaths was reported to be 114 with 308 injured compared to 2018 where the number of deaths was seven and four injured. Out of the seven deaths six involved Shia Hazaras living in Quetta and only one death was that of a Shia man who was shot and two injured in Karachi. [20]
[20] >
The Tribunal has also had regard to recent media reports which also confirmed that there has been a decrease in sectarian violence across Pakistan:
In 2018, only 12 incidents of sectarian violence were reported from across the country, most of which were of minor nature. This was in contrast with 2013, when 220 such incidences were reported and have been plummeting since then.
These findings are shared in a report by Pakistan Institute of Peace Studies (PIPS) on improving sectarian harmony. The report is the outcome of a daylong closed roundtable PIPS held on sectarian harmony. Renowned and credible religious scholars of all Islamic schools of thoughts as well as experts on the subjects participated.[21]
[21] Sectarian violence on decline in Pakistan, News International, The (Pakistan) March 23, 2019 2019 WLNR 91890753/23/19 NEWSINTLPAK (No Page)3/23/19 News Int’l (Pak.)
PIPS reports that the Government of Pakistan and religious scholars have taken the following measures to tackle sectarianism in Pakistan:
- Agreement on sectarian harmony, GB: This agreement was evolved by a board of
  religious scholars in Gilgit Baltistan. It was later endorsed by GB’s Assembly. The
  agreement is implemented successfully.
- Milli Yakjehti Council: A national-level representative body of all sects in Pakistan, MJC was pointed out for promoting harmony early on.
- National Action Plan, 2014: The government’s counter-terror plan, it has three points on sectarian harmony: (1) There will be a crackdown against hate speech and action will be taken against newspapers and magazines contributed to spread of such speech; (2) Measures will be taken to stop religious extremism and protect religious minorities; and (3) Madrassas will be regularized and reformed.
- Tanzeem-e-Ittehad Madaris Diniya: A body which has representatives from all madrassah boards.
- Paigham-e-Pakistan, 2018: A document that reads more like fatwa, which is endorsed by leading scholars of all sects, Paigham-e-Pakistan denounces violence in the name of religion. It enjoys support of both civilian and military leadership. However, some complained that the state thrust the document on them. Many were asked to sign it even though they disagreed with some of its clauses. Although it is being disseminated widely, it is still not heard of by a sizeable section of society, which was not consulted in it through any forum. There is also controversy over the involvement of leaders of banned outfits in its dissemination and endorsement.
- National Counter Terrorism Authority’s (NACTA) collaboration with the Higher Education Commission (HEC) on eradicating sectarianism from the campuses.[22]

As detailed above the Tribunal accepts that the applicant has been diagnosed with a number of psychological conditions and may require ongoing treatment.
With respect to the mental health services in Pakistan, Al Jazeera recently reported with respect to Pakistan’s mental health system:
Pakistan has one of the lowest mental illness patient-to-doctor ratios in the world. In a seminar held earlier this year in Karachi, a prominent Pakistani doctor revealed that Pakistan has only 380 trained psychiatrists — meaning that there is roughly one psychiatrist available per half-million people. The result is that even when patients fighting something as common as depression or anxiety recognize their symptoms, overcome the stigma, gain the support of their families and start looking for medical help, there simply isn’t much help to be had.[31]
[31]
The Tribunal finds that the applicant’s psychological health and lack of medical recourses is not of itself grounds for granting complementary protection. Further, it was not claimed by the applicant that there would be any intention on the part of another person or the state to cause him significant harm because of his psychological condition.
Section 36(2B) sets out circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm. In this regard, the Tribunal has considered the level of protection that the applicant could obtain, if necessary, from an authority of Pakistan against any threat of significant harm (s.36(2B)(b)). The Tribunal notes that the relevant test under the ‘complementary protection’ criterion in relation to protection available from an authority of the country is a different test to the ‘effective protection’ test which applies in relation to the ‘refugee’ criterion.
In MIAC v MZYYL the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[32]
[32] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.
The Tribunal finds that this requirement is met in the applicant’s case. As detailed above the police have assisted the applicant in the past to secure the release of [Child B]. While the Tribunal finds that all risk to the applicant cannot be ruled out, the Tribunal assesses that the protection measures available to the applicant especially in light of recent measures taken by the Government of Pakistan and religious scholars to tackle sectarianism, are such that he could obtain protection such that there would not be a real risk that he would suffer significant harm. The Tribunal therefore finds that there is not a real risk that the applicant would suffer significant harm from criminal gangs or Sunni extremist groups as a necessary and foreseeable consequence of him being removed from Australia to Pakistan.
Considering the applicant’s individual circumstances and the country information discussed above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm from criminal gangs or Sunni extremist groups who seek to abduct him for ransom because he will be perceived to be wealthy.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christopher Smolicz
Member

Dawn, ‘Ashura observed peacefully amid tight security in KP’, 23 September 2018,
Express Tribune, ‘Ashura processions culminate peacefully’, 3 October 2017,

Dawn, ‘Ashura processions culminate peacefully across country’, 1 October 2017,

[2019] AATA 6401

10 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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