1714952 (Refugee)

1714952 (Refugee) [2021] AATA 3232 (4 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714952
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:David McCulloch
DATE:4 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 June 2021 at 10:37am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – conversion from Sunni Muslim to Shi’a Muslim – anti-Shi’a violence – prevalence of fraud – credibility concerns – inconsistent evidence – delay in departing Pakistan – delay in applying for protection – voluntary return to Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 26 May 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 12 May 2021 at 2 pm. The Tribunal was assisted through the use of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report Pakistan, 20 February 2019, a copy of which was provided to the applicant at the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant initially arrived in Australia [in] April 2014 on a [student] visa that expired on 13 September 2015. The applicant lodged a further application for a [student] visa on 11 September 2015 that was rejected by the Department on 21 October 2015. The applicant sought a review of that decision from the Migration Review Tribunal, which upheld the decision [in] May 2016. Whilst the review was being heard the applicant (on 27 January 2016) had been granted a WB 020 Bridging visa. The applicant departed the country [in] February 2016, returning [in] April 2016 on the same WB 020 bridging visa. On 26 May 2016 the applicant applied for an XA 866 Protection visa, and a WC 030 Bridging visa was subsequently granted. The WB 020 Bridging visa ceased on 31 May 2016. On 15 June 2016 the applicant’s WC 030 Bridging visa ceased. The applicant is currently holding a WC 030 Bridging visa, granted on 2 August 2016 in association with his current protection visa application.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Lahore, Pakistan. The applicant speaks Urdu. The applicant has [number] sisters, and a brother, who all reside in Lahore, Pakistan. The applicant had a wife and daughter, however they are both deceased. The applicant’s father is deceased, and his mother currently resides in Lahore, Pakistan. Prior to moving to Australia, the applicant lived in [Neighbourhood 1], Lahore, Punjab, Pakistan. Since his arrival in Australia the applicant has resided in [Suburb 1], Sydney, New South Wales. The applicant attended secondary school at [School 1] from March 1990 until August 2000. The applicant then studied a [Qualification 1] at [College 1] from October 2000 until September 2003. The applicant then studied a [Qualification 2] at [University 1] from September 2003 until May 2005. The applicant then studied a [Qualification 3] from July 2005 until August 2007 at [University 1]. The applicant worked from September 2009 until October 2013 at [Company 1], listing his role at this company as “management”.
The applicant provided a statutory declaration setting out his claims for protection as follows (not corrected for spelling or grammar):
STATEMENT BY [the applicant]
1. My name is [the applicant]
2. I was born in Lahore, Pakistan on [date]
3. We are [number] brothers and [number] sisters
4. My father died in 1988 when I was only [age] years old.
5. After the death of my father, my elder brother and my mother looked after me.
6. My address in Pakistan is: [Address redacted] Lahore PAKISTAN.
MY EDUCATIONAL BACKGROUND
7. In 2005, I completed the [Qualification 2] at the [University 1], Pakistan.
8. In 2007, I completed the [Qualification 3] at the [University 1] Pakistan.
MY WORK EXPERIENCE
9. From 2009 to 2013 I worked for [Company 2] in Lahore Pakistan.
MY INVOLVEMENT WITH A SHIAS RELIGIOUS ORGANISATION
10. I was born to a Sunni family and I remained with the Sunni faith until October 1998 when I converted to Shia faith of Islam. I am now a "Shia Muslim" by faith.
11. During my school days I became actively involved with a Shia religious organisation known as "[Organisation 1]" at [Neighbourhood 1] Lahore. We were a group of friends who were actively involved with this organisation.
12. In 1997, when I was student at [School 1] in [Neighbourhood 2] Lahore, I developed a close friendship with one of my class fellows whose name is [Mr A]. Who is a Shia by faith.
13. My friend [Mr A] influenced me to become Shia. He used to discuss with me about Shia faith of Islam. We both used to compare the Sunni and Shia faith.
14. We both started visiting Imam Bargah at [Neighbourhood 1] Lahore. There my regular teaching of Shia's philosophy and the principles were taught to me.
15. Finally in October 1998 I was converted on the hands of the Imam of the Imam Bargah.
16. In 2003, Ehle Sunat Wal Jamat killed Shia's religious leader Javed Hussain Dogar in People's colony Lahore.
17. In 2004, a suicide Bomber blew himself at a Shia Mosque in "Machi gate" area of Lahore. Five Shias were killed and sic [sic] injured. I was also present there and was severely injured.
18. In 2007, on 10th Moharam there was a big fight between Shias and Sunnies. I was also there when it happened. Among others, I was also reported in the First Information Report (FIR) as one of the attackers in killings. This First Information Report was lodged at [Police Station 1] Lahore.
19. Because of this FIR, I was arrested but was released on two months bail but latter on I was acquitted.
20. In 2009, I was attacked by Sunni people and was injured and admitted to Hospital. I lodged an FIR against two Sunni persons and they were arrested.
21. In the summer of 2011, Lashkar-E-Jhangvi sent an open letter to the Shia community in Quetta, the Capital of Pakistan's Province Bluchistan and home to around six hundred thousand Shi as from the Hazara tribe. The letter written in Urdu and signed by the Commander of Jhangvi, read: "All Shias are worthy of killing. We will rid Pakistan of (this] unclean people. Pakistan means land of the pure, and the Shias have no rights to be here. We will make Pakistan their graveyard their houses will be destroyed by bombs and suicide bombers"
22. I was became scarred because of this threatening letter and decided to leave Pakistan. I am an educated person and started trying for getting admission for higher studies and decided to go to Australia for studies.
23. Again in 2012, Ehle Sunat Wal Jamat attacked on lmamia colony Abbas Nagar lnam Barghah. Eleven Shias were killed and several injured.
24. It has now become a frequent happening that riots between Shias and Sunnies do happen every day. Shia are in minority in Pakistan and more recently several members of Shias were killed in Quetta.
MY DECISION TO LEAVE PAKISTAN
25. All of my friends and relative advised me to leave Pakistan as soon as possible and to save my life. Therefore I had no alternative then to leave Pakistan for the safe of my life.
26. My life in Pakistan is in danger at the hands of these fanatic "molvies" and Sunni activists. In Pakistan I have no place to keep myself safe. The members of these fanatics "Ahle Sunat Wal Jamat". Sunni activists are all over in Pakistan even in the Police Department.
27. I decided to leave Pakistan and seek protection in some other country.
28. In 2013, I applied for admission to study [Qualification 4] but was rejected. I applied again in November/ December 2013 for admission and I was accepted.
29. I arrived in Australia [in] April 2014.
MY CONFUSION ABOUT APPLYING FOR PROTECTION DUE TO THE PRESENCE OF MY FAMILY IN PAKISTAN
30. I started my studies on 12 May 2014 but I could not concentrate on my studies as I remained worried about my family in Pakistan. My brother had a severe accident in Pakistan in June 2014 who was hit by Sunni activists as they wanted to punish me and my family.
31. After arriving in Australia I became very undecided whether to apply for a protection visa. I was very reluctant in the beginning to apply for protection visa as I was worried about my family back in Pakistan. I was also afraid that my family would get hurt once the enemy organisation came to know that I have abandoned Pakistan.
32. My mother started remaining sick and I had go to Pakistan to meet my mother on Bridging visa "B". My mother was in [Hospital 1] Lahore and I remained with my mother in the hospital for all time.
33. My family is receiving threats from the same group.
34. I have finally decided to apply the Protection Visa in Australia as I have no alternatives.
NO SAFETY IN PAKISTAN AS A STATE
35. The "Ehle Sunat Waljamat" group and many like this one are so powerful that authorities in Pakistan themselves are helpless and powerless against these organisations.
36. Pakistan has suffered not only loss of so many human lives but also been financially crippled by these religious fanatics.
MY APPEAL FOR REFUGE
37. I would like to request that my application be kindly considered for protection in Austra lia.
38. I believe that Australia is a peaceful and peace loving country and I can live here peacefully without having harmed a life or property or being harmed or threatened by others.
39. I strongly believe that under the present set of affairs my life would be at risk when and if I go back to Pakistan.
The applicant provided the following documents to the Department:
·An Emergency Department Slip dated 27 March (but no year) from a hospital in Lahore for a [Ms B] indicating a diagnosis of appendicitis.
·Email to the applicant dated 1 March 2017 signed by ‘The Chief, Lashkar-e-Jhangvi, Pakistan’ indicating that all shia are liable to be killed and that ‘we’ will rid Pakistan of these impure people.
The applicant provided documents to the Tribunal. One of the documents is a letter by the applicant’s migration agent dated 9 March 2017 addressed to the Department. The letter refers to various documents that accompany the letter, including:
·    Original and translation of a First Information Report
·    Letter from Imam Bargah
·    Medical letters dated [in] January 2009, [in] May 2009 and [in] July 2007.
Upon examination of the Departmental file in the Tribunal’s possession, neither the original letter nor the enclosed documents appeared on the file. The correspondence to the Tribunal only provides the letter from Imam Bargah, but not the other documents. The Tribunal wrote to the applicant requesting the other documents. These documents were provided to the Tribunal.
Provided is a copy of the original and a translation of a First Information Report of [Police Station 1] indicating a report [in] May 2009 at 2:10 pm in relation to a claim by the applicant who indicates that on 12:30 pm on that day the applicant was attacked by two young men who the applicant names who caught the applicant and pressed his throat for ‘killing me’. They indicated that there was no place for a ‘Ahle Tashi’ in the area. They were related to a Sunni sect and Sunnis in the neighbourhood. The applicant was beaten and got injured. Some people came, causing the applicant to be released. The accused persons ran away. The applicant refers to treatment in hospital.
The following medical reports were provided:
·An ‘Out Door Patient Ticket’ at [Hospital 2] Lahore relating to the applicant dated [in] July 2007 referring to an injury of the back/spine indicating the need for complete bed rest and the prescription of three different medications.
·An ‘Out Door Patient Ticket’ at [Hospital 2] Lahore relating to the applicant dated [in] January 2009 referring to an indecipherable condition and indicating a requirement for complete bed rest for seven days and the prescription of three different medications.
·An ‘Out Door Patient Ticket’ at [Hospital 2] Lahore relating to the applicant dated [in] May 2009 indicating a head injury and indicating a requirement for complete bed rest for five days and the prescription of two different medications
The letter on the letterhead of [Organisation 1] is dated [in] August 2016. It is signed by the President, [Mr C]. The letter makes reference to asylum being required for the applicant. It attests to the fact that the applicant became part of the Shia organisation in 1998 and is a brave soldier. It refers to the injury suffered by the applicant in the suicide attack in 2004. It refers to the applicant being badly beaten in a Shia/Sunni dispute on 10 Moharram 2007 where he received serious injuries. It refers to a First Information Report being lodged at [Police Station 1]. It refers to the applicant getting threatening letters from enemies and another First Information Report being lodged in relation to this at the same police station. It refers to the applicant being attacked to be killed in 2009 and threatened by Lashkar-e-Jhangvi.
The applicant’s migration agent provided a submission to the Tribunal dated 29 January 2021. Submissions are made in relation to various adverse findings by the delegate including the applicant’s lack of detail about the conversion process and the fact that he did not provide any real reason for his conversion other than the way that Shias pray. It is submitted that a person’s religious faith is subjective and individuals may not have knowledge of their religion in much detail. The applicant’s conversion process was gradual and he was influenced by a friend. Reference is made to the applicant delaying the lodgement of his application. It is submitted that this did not take into account the fact that he had become mentally sick. Reference is also made to an error in the delegate’s decision concerning the country the applicant is from, demonstrating that the delegate ‘cut and pasted’ in the decision.
A further submission and documents were provided to the Tribunal on 5 May 2021. The content of the submission is the same as that provided on 29 January 2021. The documents provided are the same as those previously provided.
Independent information
The DFAT Country Information Report Pakistan, 20 February 2019, provides the following information (underlining added):
RELIGION
Article 20 of the Constitution provides that ‘subject to law, public order, and morality, —(a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’. Article 36 guarantees ‘the legitimate rights and interests of minorities, including their due representation in the DFAT Country Information Report Pakistan 33 Federal and Provincial services’. The Constitution establishes Islam as the state religion (Article 2). Articles 41(2) and 91(3) of the Constitution require that the president and the prime minister be Muslim. Article 260 of the Constitution defines the term ‘Muslim’, and explicitly excludes from that definition several groups, including Ahmadis.
In 1979, then-president and General Zia ul-Haq, introduced The Offence of Zina (Enforcement of Hudood) Ordinance, 1979, otherwise known as the ‘Hudood Ordinances’, prohibiting consumption of alcohol, sex outside marriage, and pornography. Non-Muslims are exempt from the alcohol ban. The other provisions apply to both Muslims and non-Muslims, but the testimony of a non-Muslim person is accepted only where the accused is also not Muslim.
The provisional results of the 2017 national census recorded that Muslims comprise 96.28 per cent of the population, of whom approximately 85 to 90 per cent are Sunnis and 10 to 15 per cent Shi’a, Christians comprise 1.59 per cent, Hindus 1.6 per cent, Ahmadis 0.22 per cent and others (including Sikhs, Parsis (Zoroastrians), Baha’i and Buddhists) 0.32 per cent. Many religious minority groups have told DFAT these numbers are inaccurate, and minority groups (most notably Christians) are larger than the data indicates.
Around 60 per cent of the Sunnis adhere to the Barelvi school, with a significant minority (around 35 per cent) following the Deobandi school. While both groups follow the same basic principles of Islamic theology (the Hanafi school), Deobandis have a more orthodox and conservative interpretation. A smaller number of Sunnis (around five per cent) follow the Ahl-e-Hadith (Salafi) school. According to the International Crisis Group, most Sunni militant groups in Pakistan claim to follow a form of Deobandi or Salafi Islam, including TTP, Jaish-e Mohammad and LeJ.
Most Shi’a in Pakistan follow the Twelver (athna ashariya) school, with smaller numbers of Nizari Ismailis, Daudi Bohras and Sulemani Bohras. Most of Pakistan’s ethnic, linguistic and tribal groups include followers of Shi’a Islam.
Sufism, a mystical interpretation of Islam involving saint and shrine devotion, is widespread in South Asia, including Pakistan. Many Shi’a and Barelvi Sunnis in Pakistan venerate Sufi saints and shrines. Sufi places of worship have been common targets for sectarian attacks. Such attacks include an attack in February 2017 on the Lal Shabaz Qalandar shrine in Sindh province, which killed more than 80 people, and an ISIL-claimed suicide attack in October 2017 on a Sufi shrine in Balochistan, which killed 18 people and injured 27. Sufism is practiced openly, and shrines are plentiful and visible.
Until the 1980s, Pakistanis were less divided along sectarian lines than by ethnic, tribal and linguistic differences. However, in 1984, then-president Zia ul-Haq issued Ordinance XX of 1984 (pronounced Ordinance 20) prohibiting Ahmadis from self-identifying as Muslims (see Ahmadis). While some Shi’a supported Ordinance XX, some Sunni groups called for the government to extend the prohibition to Shi’a. The promulgation of the zakat, a compulsory religious tax based on Sunni law, inflamed sectarian tensions further, although Shi’a were later exempted from paying the zakat.
A wide range of local and international commentators reported growing religious intolerance in 2018. Political leaders are reluctant to speak against religious discrimination, and those who have spoken have faced violence (see Blasphemy). During the 2018 election campaign, political discourse became more religious, exacerbating the gap between the religious majority and minorities. Religiosity is also increasing among Pakistan’s youth.
The 2018 annual report of the United States Commission on International Religious Freedom (USCIRF), which designated Pakistan as a ‘country of particular concern’, observed increased incitement in the media of intolerance against religious minorities. USCIRF found the government failed to provide adequate protection to religious minorities and itself perpetrated systematic and egregious violations of religious freedom. USCIRF observed that religious minorities in Pakistan, including Hindus, Christians, Sikhs, Ahmadis and Shi’a Muslims, DFAT Country Information Report Pakistan continued to face societal discrimination and attacks from extremist groups. USCIRF also expressed concern about the impact on religious minorities of the entry of some fundamentalist religious parties into the political arena ahead of the 2018 elections. Some local groups, noting the ambivalent position of the military, share these concerns.
While there has been a declining trend in sectarian violence since 2014, the Pakistan Institute for Peace Studies (PIPs) recorded at least six terrorist attacks deliberately targeting religious minorities in 2017, killing 13 and injuring 57 people. Four of these attacks targeted the Ahmadi community across three cities in Punjab, and one, claimed by ISIL, targeted the Christian community in Quetta. PIPS reported five incidents of faith-based mob violence in 2017 (see Blasphemy).
DFAT assesses, with the exception of the Ahmadi and Hazara communities (see Ahmadis and Hazaras), Pakistanis are generally able to practise their religion without official interference or discrimination. However, DFAT notes a trend of increased religious conservatism and intolerance towards religious minorities in Pakistan, which is likely to continue in 2019. Most religious minorities (with Ahmadi and Hazara exceptions noted above) face a moderate risk of societal discrimination and violence targeting religious ceremonies and places of worship. However, DFAT assesses that the risk of violence and societal discrimination based on religion varies across different groups and locations within Pakistan (see Shi’a, Ahmadis, Christians and Hindus). DFAT assesses sectarian violence disproportionately affects religious minorities in Pakistan (see Armed Groups).[1]
[1] DFAT Country Information Report Pakistan, 20 February 2019, paras 3.70–3.80
…
Shi’a
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.
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.
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.
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. Selfharm, such as flagellation performed during Ashura processions, can leave permanent marks. Shi’a and Sunni mosques are clearly distinguishable.
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.
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.
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 (see Hazaras Hazarasand Turis) 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.
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.
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.
Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties (see Security Situation). Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘nonbelievers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.
The LeJ (see Armed Groups) has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta (see Hazaras) and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’ According to the SATP, 114 Shi’as were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with the ISIL, claimed responsibility for many of the attacks.
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.
Shi’a in Pakistan often travel to Iran and Iraq for religious pilgrimage. Militant groups have historically targeted routes used by Shi’a pilgrims, particularly through Balochistan. In 2014, militants attacked a bus on the Quetta-Taftan highway in Mastung District, Balochistan, killing at least 29 Shi’a pilgrims and injuring 35. Militants identify Shi’a by Shi’a names displayed on CNICs, or flagellation marks from Ashura ceremonies. Hazara Shi’a are more readily identifiable due to their distinctive physical appearance (see Hazaras). Shi’a pilgrims can travel by air rather than by road, but many cannot afford to do so.
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.
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 (see Hazaras and Turis). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.
Anti-Shi’a violence
Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests. The NAP (see Security Operations) 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 (see Hazaras) 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.
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.
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 (see Hazaras). Militants also target Shi’a travelling through Balochistan to the Iranian border (see Shi’a). The number of casualties from sectarian violence in Balochistan has fallen since the introduction of the NAP and Operation Zarb-e-Azb (see Security Operations). 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 (see Hazaras).
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.
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.
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.
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.
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.[2]
…
PREVALENCE OF FRAUD
CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents, and can cancel fraudulent CNICs.
Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.
Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.
FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police 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.
Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.
As self-declaration as an Afghan is the only requirement to apply for an ACC, it is possible for an individual not in either the NADRA or MORR databases to fraudulently obtain an ACC (see Afghan Refugees).
Corruption is also common (see Corruption), however in August 2015, the FIA reportedly investigated allegations of NADRA officials issuing fake CNICs to militants in return for bribes as low as USD 100. Since then, MoI has increased its oversight of NADRA and implemented tough measures against fraud within NADRA. DFAT assesses that government efforts have reduced the incidence of bribery and fraud, but have not eliminated it.[3]
[2] DFAT Country Information Report Pakistan, 20 February 2019, paras 3.90–3.112
[3] DFAT Country Information Report Pakistan, 20 February 2019, paras 5.70–5.76
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Pakistan and accordingly his claims will be assessed against Pakistan.
The Tribunal has a number of credibility issues with the applicant’s claims, including on core issues, which follow.
Firstly, in relation to the claims of a fight between Sunnis and Shias in 2007 the applicant has not been consistent in terms of whether there were deaths. The applicant’s written claims refer to killings for which he was initially held responsible by the police. In contrast, in the hearing the applicant indicated that whilst individuals were injured none were killed.
The applicant did not provide an explanation that explained this inconsistency when it was put to him in the hearing.
Secondly, in relation to the claimed 2007 attack there are inconsistencies in the applicant’s evidence as to the period of his detention by police and the relevant steps that were taken by police in relation to him.
The applicant’s written claims indicate that police made a First Information Report against him as one of the attackers in the killings. The applicant indicated in written claims that he was arrested but released on two months’ bail, but later he was acquitted. In the applicant’s interview with the delegate he indicated that he was detained by police for two months.
In contrast, in the Tribunal hearing, the applicant indicated that he was kept at the police station only for a few hours before police realised that he was not culpable and released him without any formal process. There was no mention of any process, bail or charge which caused him to be acquitted later.
When it was put to the applicant that there was a clear inconsistency in evidence on these issues, the applicant indicated that it is difficult to remember but maintained that police only kept him for a number of hours and then released him. The various inconsistencies were not adequately explained.
The Tribunal is not satisfied that the applicant would have memory loss as to what the Tribunal considers very memorable issues from an impactful and traumatic incident including not accepting that the applicant would be confused as to whether he was detained for several hours or two months.
Thirdly, written evidence of medical treatment received by the applicant following the claimed attack in 2007 does not correlate with the applicant’s account as to when this event occurred. The medical certificate provided by the applicant is dated 8 July 2007.
In the hearing, the applicant indicated that he received medical treatment on the same day as the attack which occurred on 10 Muharrum 2007 in the relevant calendar. The Tribunal noted to the applicant at the hearing that a simple internet search indicates that 10 Muharrum was late January 2007 in the Western calendar.[4]
[4] Muharram in 2007 started on Saturday, the 20^th of January and continued for 29 days until Saturday, the 17^th of February: When-is.com, When was Al-Hijra / Muharram in 2007?, (Web Page) <>
In response, the applicant indicated that a mistake must have been made in the date indicated in the medical report.
The Tribunal accepts that mistakes can occur. However, in the context of considering all of the credibility concerns cumulatively, the Tribunal considers that the explanation for the inconsistency is more attributed to the applicant, without care to ensure detail, obtaining fraudulent supporting documents to support false claims. Issues in relation to the genuineness of supporting documents provided are discussed further below.
Fourthly, inconsistent evidence has been provided as to the details of injuries suffered in the 2007 attack. The claimed medical certificate indicates injury to the applicant’s back/spine. This is in contrast to the applicant’s evidence in the interview with the delegate that the injury was to his head.
In the hearing, the applicant referred to injuries on his head, all over his body, and open wounds on his shoulders and arms.
The Tribunal put to the applicant that it was inclined to consider if a genuine medical certificate was obtained it would more accurately describe the full extent of the injuries claimed in the hearing. In response, the applicant referred to the back issue being the more substantive matter.
In relation to this explanation, whilst in the hearing the applicant referred to being hit all over his body, he made no specific mention of back/spine injuries.
The differing evidence on this issue, and the fact that the medical certificate only refers to injuries to the back/spine is undermining as to the applicant’s credibility including in relation to the details of the 2007 attack.
Fifthly, there are significant inconsistencies in the applicant’s evidence as to what happened to the two individuals who attacked him in 2009. In the hearing, the applicant indicated that two men approached him outside his home and attacked him. He did not know who these individuals were. The applicant indicated that neighbours came out causing his attackers to flee the scene.
The applicant indicated that he went to the police station and reported the attack but was not able to provide the police with the name of the attackers because he did not know them. The applicant indicated that because details were not able to be provided police were not able to find the attackers. In response, the applicant indicated that the attackers were not subsequently arrested.
The Tribunal put to the applicant in the hearing conflicting evidence in his written claims for protection that the two Sunni persons who attacked him were arrested.
In response, the applicant indicated that it has been many years and he cannot remember.
The Tribunal does not accept that the applicant would not remember or confuse not insignificant detail as to whether individuals who have assaulted him in 2009 were or were not subsequently detained by the police.
Sixthly, uncertainty by the applicant in the hearing as to the number of those killed and injured in the claimed 2004 bomb attack is not consistent with the applicant’s written claims providing quite specific details as to the number of those killed and injured.
In the applicant’s written claims he says that five Shia were killed in the bomb blast and ‘sic’ (sic) injured. When the Tribunal explored with the applicant in the hearing the number of those killed and injured, the applicant was quite uncertain and not able to provide a specific indication. The applicant indicated that he may have learned details from media reports following the attack but he no longer has a memory of the details.
As put to the applicant in the hearing, the Tribunal would be inclined to consider that if the applicant had been involved in the extremely impactful and traumatic event of a bomb blast, including having been injured, that he would retain details as to the approximate number of others who were injured or killed. The applicant indicated that it is a long time ago and he cannot remember.
The Tribunal has some credibility concerns as to the very specific detail provided in the applicant’s written claims but indicating in the hearing that he has no specific memory or knowledge of the number of those injured and killed.
This is not a major credibility concern, but it is considered cumulatively with other more substantial concerns identified above.
Seventhly, the applicant has given inconsistent evidence in the hearing as to adverse encounters or threats being made to his mother and [number] sisters in Pakistan in relation to the applicant, after the applicant left for Australia.
At the beginning of the hearing, the Tribunal questioned the applicant as to whether any difficulties had been faced, including on his behalf, by his mother and sisters. In response, the applicant indicated that the only difficulties had been suffered by his brother, and not his mother or sisters because they spent most of their time in their respective homes.
However, later in the hearing, the applicant upon further questioning, contradicted this evidence to say that there were threats made to the applicant’s mother and sisters and a questioning of them as to the applicant’s whereabouts by individuals when his mother and his sisters left their respective homes.
While this is an inconsistency on a relative matter of detail, the applicant has been directly inconsistent in terms of adverse contact or threats towards his mother and sisters in the hearing.
This is undermining of the applicant’s credibility.
Eighthly, the delay by the applicant from the last claimed direct harm to him as a result of being Shia in 2009 but the applicant not leaving for Australia until April 2014 is undermining of claims that the applicant came to Australia fleeing due to fear as a result of being Shia.
The applicant confirmed in the hearing that he himself did not experience any difficulties as a result of being Shia from 2009 until coming to Australia in April 2014.
When the Tribunal put to the applicant that this delay created concerns for the Tribunal as to the claimed reason for leaving Pakistan, the applicant, consistent with his written claims said that there were written warnings to many Shias generally and harm experienced by other Shia. The applicant indicated that these events caused the applicant’s family persuaded him that he needed to leave Pakistan in 2014.
Whilst the Tribunal can accept that threats directed towards Shias and reports of attacks on Shias could have created disquiet for the applicant, the Tribunal is still troubled as to the genuineness of the explanation as to why the applicant came to Australia in April 2014 when he had not suffered any claimed difficulties as a result of being Shia since 2009.
Ninthly, the truth of the applicant fleeing Pakistan for the reasons claimed in April 2014 is inconsistent with the delay by the applicant in applying for the protection visa until 26 May 2016.
As put to the applicant in the hearing, his original student visa expired on 13 September 2015 and he lodged a new student visa application on 11 September 2015 but this was rejected by the Department on 21 October 2015. The applicant sought review of this decision to the Migration Review Tribunal which upheld the Departmental decision [in] May 2016. It was only after that, on 26 May 2016 that he applied for the protection visa.
The Tribunal put to the applicant that this history could be undermining of the genuineness of the applicant leaving Pakistan for the reasons claimed. The Tribunal would have expected that if that were the case the protection visa application would have been lodged at a much earlier time rather than pursuing review options of the refusal of his second student visa.
In response, the applicant indicated that he was waiting for the situation to improve, but it never did.
The Tribunal has difficulties with this explanation, particularly because, on the applicant’s own claims, he suffered no direct harm between 2009 and leaving for Australia in 2014.
The delay in the context of the applicant’s visa history in Australia is undermining as to the genuineness of his fears and claims as to what occurred in Pakistan.
Tenthly, a return visit by the applicant to Pakistan in 2016 and an intention to return in 2017 is somewhat undermining of claims that the applicant cannot return to Pakistan for the reasons claimed.
The applicant agreed in the hearing that he returned to Pakistan between 23 February 2016 and 25 April 2016. The applicant indicated that this was to visit his sick mother, and that he spent the whole time in the hospital where she was located, including sleeping in the hospital. The applicant indicated that he did not come to anyone’s attention and therefore was not harmed as a result of being Shia.
The applicant also agreed, consistent with information from government records in relation to his application for a bridging visa, that he had planned to return to Pakistan in 2017 to visit his sick grandmother. The applicant at hearing indicated that he did not proceed with this trip because the relevant bridging visa was denied.
The Tribunal put to the applicant that this intended visit could also be seen as undermining of claims that the applicant cannot return to Pakistan based on being Shia. In response the applicant indicated that he was motivated to return because of the love between him and his grandmother.
The Tribunal accepts that extenuating circumstances and family ties can sometimes reasonably result in individuals taking some risk in returning to dangerous home countries because of the intensity of family relationships.
The Tribunal accepts the return visit and intended return visit would not have been for long periods thus mitigating the risk.
Nevertheless, the return visit and the intended return visit cast some doubt as to the level of the applicant’s claimed fear based on being Shia.
This again is not a major credibility concern but is considered cumulatively together with other matters.
The Tribunal notes at the end of the hearing the applicant’s migration agent indicated that he wished to provide a written submission following the hearing, including to respond to issues raised during the hearing. The Tribunal agreed to this request. No submission was forthcoming in the timeframe requested or thereafter.
The Tribunal considers these 10 issues cumulatively. Considered together they are very damaging to the applicant’s overall credibility and key claims. There are many inconsistencies and a number are stark and relating to core claimed matters relevant to the claimed circumstances and harm.
In considering credibility, the Tribunal has taken into account supporting documents provided by the applicant to the Department, including the First Information Report from police, medical reports in relation to claimed harm, and a statement from the applicant’s religious body attesting to his religion and the harm he experienced in Pakistan.
As put to the applicant in the hearing, the DFAT information (extracted in this decision) as to the ready ability to obtain fraudulent documents in Pakistan, could result in the Tribunal considering, in the context of cumulative consideration of all of the credibility concerns, that these documents have been fraudulently acquired to support untrue claims for protection.
In response, the applicant indicated that he had no comment.
The various credibility concerns result in the Tribunal considering that the applicant has been an untruthful and unreliable witness. The Tribunal is not satisfied as to any substantive claims by the applicant.
In the context of cumulative consideration of all the credibility concerns the Tribunal is not satisfied that documents provided which support his claims for protection are genuine.
The Tribunal is not satisfied that the applicant converted from being a Sunni Muslim to a Shia Muslim. The Tribunal is not satisfied that the applicant was injured in a bomb blast in a Shia mosque in 2004. The Tribunal is not satisfied that the applicant was involved in a fight between Sunnis and Shias in 2007 in which individuals including the applicant were injured, nor anyone killed. The Tribunal is not satisfied that the applicant was detained for any period by police. The Tribunal is not satisfied that the applicant was assaulted by two Sunni men in 2009 resulting in the applicant lodging a First Information Report with police or the attackers were detained by police. The Tribunal is not satisfied that the applicant left Pakistan due to fear as a result of his religion.
While the Tribunal accepts that there may have been written threats issued towards Shias in 2011 and some instances of harm suffered by Shias in the lead up to the applicant coming to Australia, the Tribunal is not satisfied that these events, nor past claimed harm suffered by the applicant as a result of being Shia, were the motivation for him coming to Australia.
The Tribunal is not satisfied that there are Sunnis or anyone else in Pakistan that have an adverse intention towards the applicant such that there is a real chance they would cause him serious or significant harm on return to Pakistan.
As discussed with the applicant in the hearing, even if the applicant is a practising Shia and had converted, the independent information from DFAT does not suggest the level of harm directed towards Shias in Pakistan is at a level that a practising Shia (as a class) faces a real chance of serious or significant harm based on the practise of their religion. No independent information to the contrary has been provided by the applicant. As indicated in the hearing, the DFAT assessment, while indicating that there can be some discrimination and harm directed towards Shias as a minority religious group, assesses that Shia in Pakistan face a low risk of sectarian violence. DFAT notes that Shia live throughout Punjab, including in Lahore, and that in big cities Sunni and Shia communities are much more integrated.
In response, the applicant indicated that there are instances of Shias facing harm in Pakistan.
The Tribunal accepts this, but it does not accept that the level of this harm is so significant that every Shia in Pakistan faces a real chance of serious or significant harm.
Thus, if the applicant is a practising Shia (which the Tribunal does not accept because it is unable to be satisfied based on the many credibility issues as to his core substantive claims), the Tribunal does not accept that his Shia practice on return to Pakistan, without the applicant having any particular profile or having suffered past harm, would lead to him facing a real chance of serious or significant harm.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

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

[2021] AATA 3232

4 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Remedies