1722747 (Refugee)

[2023] AATA 3216

1722747 (Refugee) [2023] AATA 3216 (23 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Munashe Rusamo

CASE NUMBER:  1722747

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Simone Burford

DATE:23 June 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

Statement made on 23 June 2023 at 4:13pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – involved in Shia community organisations and committees – provision of security for the local imambargah – sectarian violence – political opinion – supporter of the Tehreek-e Jafaria Pakistan (TJP) – inter-sect marriage – animosity from family members – returnees from a western country – mental health issues – deteriorating security situation in Pakistan – effective state protection – internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).

   Background

2. The applicants are a family from Pakistan. The first applicant is a [age]-year-old Pakistani citizen who was born in Lahore, Punjab, Pakistan. He speaks, reads and writes Urdu and English (basic) and reads Arabic at a basic level (the Koran). The second applicant is the first applicant’s [age]-year-old Pakistani citizen wife. She was born in Lahore, Punjab, Pakistan. She also speaks, reads and writes Urdu and can communicate in English (intermediate) and reads Arabic. The third applicant is the first and second applicants’ [age]-year-old Pakistani citizen child. He was born in Lahore, Pakistan, in [year]. He speaks Urdu and English.

3. The first applicant’s parents are deceased. He has [number] siblings, who are all living in Pakistan. He has [number] children in Pakistan from a previous marriage but has no contact with them.

4. The second applicant’s parents are deceased. She has [number] siblings. One sibling, a sister, lives in [Country 1]. Another sister lives in [Country 2].

5. According to the delegate’s decision, the first and second applicants arrived in Australia on Student TU-572 visas [in] September 2011. A further dependent student visa was granted to the first applicant on 31 July 2013. On 17 January 2014 the first applicant lodged an invalid application for a Residence Carer BU-836 visa. In June/July 2015 the first applicant left Australia for Pakistan and returned with the third applicant. The applicants applied for protection visas on 13 November 2015.

   Issue

6. 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). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.

7. The issue in the review is whether the applicant has a well-founded fear of persecution in Pakistan due to Shia religion, work providing security at the local imambargah or for any other reason, or whether complementary protection provisions otherwise apply.

8. For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visas should be remitted for reconsideration.

   Protection claims

   Protection visa application

9. The first applicant detailed his claims for protection in his application form and in a statutory declaration dated 30 August 2016 which was provided to the Department in support of the application. In the application for protection it was indicated that the second and third applicants were not making their own claims for protection. The delegate’s decision contains the following summary of the claims made in the application and interview with the Department:

   ·The applicant left Pakistan as he was on the hit list from extremist organisations, especially Tehrik-e-Taliban. Most of the people from his organisation have moved to other countries.

   ·He suffered many attacks on his life. He tried to escape to other countries but was refused. His wife and family are very scared.

   ·Everyone knows that his extremist organisation is active in Pakistan against Shia’s. He suffered a lot of harassment and was attacked. He and his family will be killed if he returns and his organisation strongly urged him to leave his country.

   ·The first attack occurred on [date]/4/1990. The second attack occurred on [date]/6/2002; extremist people tried to kill them.

   ·The third attack occurred on [date]/4/2003 which was a major attack where Sipah-e-Sahaba Pakistan (SSP) targeted and tried to kill him.

   ·The fourth attack occurred recently which was on [date]/2/2015. They targeted him in his car but his driver was very clever so he didn’t suffer any loss but his driver was slightly injured.

   ·Many Shia leaders are targeted but no one helps. His organisation suffers and they need human rights.

   ·The applicant sought help in Pakistan many times from the police. They gave him assurance but no protection. He talked to many politicians in his city and Shia’s in other cities.

   ·The applicant moved many times to different parts of the country and also to different countries. He moved from his city to Rawalpindi approximately 3 times and stayed there for 2 and a half years and he also moved to Quetta and stayed there for one month. Because he moved up in his organisation he became a famous man and maybe people recognised him. He felt people followed him but he escaped from the cities. Shias are affected badly all over Pakistan.

   ·The extremist group SSP could try and kill the applicant because of the last attack by his organisation. They strongly advised him to stay away from Pakistan otherwise he will be killed because of his previous services for the imambargah and Tehreek-e‑Jafaria Pakistan (TJP). He was not really active but they (the SSP) think he is a continuous danger to them, like others. The founder of the imambargah is the applicant’s mother’s brother and they will operate until they kill all those who are connected, especially the applicant and his uncle.

   The interview and submissions to the Department

10. The first applicant attended an interview with the Department on 13 October 2016. The applicant submitted the following documents to the Department:

    ·Copies of passports, national identity cards, birth certificates and police clearance certificates;

    ·Marriage certificate for the first and second applicants;

    ·Volunteer identity card for the first applicant;

    ·Police First Information Reports (FIRs) translations:

    o   [Date] April 1990

    o   [Date] June 2002

    o   [Date] April 2003

    o   [Date] July 2015;

    ·Translation of letter from [Organisation 1] dated 11 February 1992 appointing the first applicant as a volunteer;

    ·Translation of letter from [Mr A] dated 22 July 2015 regarding the attack in 2015;

    ·Education documents for the second applicant.

    The delegate’s decision

11. On 14 September 2017, a delegate of the Minister refused the protection visa applications. The applicants provided a copy of the delegate’s decision to the Tribunal. The delegate accepted the applicant was a Muslim and had spent the majority of his life residing in Lahore, Punjab, Pakistan. However, the delegate did not find the applicant to be a credible witness and noted his long history of non-compliance in regard to migration matters. The delegate did not accept that the applicant was subjected to targeted attacks on him as claimed or that he was the target of personal attacks while he was undertaking the role of a volunteer security member for his brother-in-law’s imambargah.

12. The delegate also noted the applicant’s delay in seeking protection in Australia and his failure to seek protection in [Country 3] when he had the opportunity to do so. The delegate considered that credible sources indicate Lahore was one of the safest places in Pakistan for Shia.

13. Based on these findings, the delegate was not satisfied the applicant faced a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.

14. The delegate was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan. Accordingly, the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

    Review application

15. On 22 September 2017, the applicants applied to the Tribunal for a review of the delegate’s decision.

16. The applicants attended hearings before the Tribunal on 13 July 2021, 13 August 2021 and 20 January 2022 to give evidence and make submissions in support of the review application.

17. Before the Tribunal, the second and third applicants made their own claims that they faced a real risk of serious harm as close family members of the first applicant. The applicants also made claims regarding a risk of harm from members of the second applicant’s family and from a cousin, [Mr B], to whom she had previously been engaged/betrothed. They claimed the third applicant in particular was at risk of harm from the second applicant’s cousin, [Mr B].

18. The hearings were conducted with the assistance of an Urdu interpreter. No issues regarding the particular interpreter or the interpretation services provided were raised by the applicants with the Tribunal during or following the hearing.

19. The applicants were represented in relation to the review by a lawyer and registered migration agent who was present at the hearings.

20. The Tribunal took evidence from the first and second applicants at the hearings. Two witnesses, [Mr C] and [Mr D], gave evidence at the third hearing by telephone from Pakistan. The third applicant attended the first hearing but did not give evidence and was not required to attend the subsequent hearings. The Tribunal took evidence from the third applicant’s parents with respect to his claims and circumstances.

    Submissions to the Tribunal

21. Prior to the first hearing on 13 July 2021 the applicant submitted the following documents to the Tribunal on 7 July 2021:

    ·Pre-hearing submissions from applicant’s representative dated 7 July 2021;

    ·Statutory declaration of [the first named applicant] dated 6 July 2021;

    ·Statutory declaration of [the second named applicant] dated 6 July 2021;

    ·Copies of passports of [the first named applicant], [the second named applicant] and [the third named applicant];

    ·Witness statement of [Mr C] with NAATI-accredited English translation;

    ·Witness statement of [Mr D], with NAATI-accredited English translation;

    ·Department of Foreign Affairs and Trade, DFAT Country Information Report: Pakistan, dated 20 February 2019;

    ·Article – Abdul Nishapuri, ‘Shia Genocide Database: A detailed account of Shia killings in Pakistan from 1955 to 31 December 2020’, Let Us Build Pakistan < dated 19 July 2012;

    ·US Department of State, International Religious Freedom Report 2020 – Pakistan < dated 12 May 2021;

    ·Shia Rights Watch, ‘Pakistan’, from Shia Rights Watch Annual Report 2019 dated 14 February 2020;

    ·Article – Shia Rights Watch, ‘Anti-Shiism Hinders the Combat of Coronavirus in Pakistan’, < dated 22 June 2020;

    ·Article – Shia Rights Watch, ‘Anti-Shia Protests in Karachi, Pakistan’ <shiarightswatch.org/anti-shia-protests-in-karachi-pakistan/> dated 16 September 2020;

    ·Article – Jaffer A. Mirza, ‘The Changing Landscape of Anti-Shia Politics in Pakistan’, The Diplomat, < dated 28 September 2020;

    ·Article – Minority Rights Group, ‘Shi’a become latest target of Pakistan’s extremist Islamic factions; murders, hate speech and numerous blasphemy allegation sow seeds of long-term religious tension’, 20 October 2020;

    ·Article – Shah Meer Baloch and Hannah Ellis-Petersen, ‘Pakistani Shias live in terror as sectarian violence increases’, The Guardian in-terror-as-sectarian-violence-increases dated 21 October 2020; and

    ·Human Rights Commission of Pakistan, State of Human Rights in 2020 dated 3 May 2021.

22. After the third hearing on 20 January 2022 the applicant submitted the following documents on 11 February 2022:

    ·Pre-hearing submissions by the applicant’s representative Jean Kearney, dated 10 February 2022;

    ·Pakistan’s Hard Policy Choices in Afghanistan, Asia Report, International Crisis Group, dated 4 February 2022;

    ·Web page, Pakistan, Asian Development Bank, dated April 2021;

    ·Article, ‘After US withdrawal, terror in Afghanistan-Pakistan back as bigger “threat”’, ANI dated 26 January 2022;

    ·DFAT Country Information Report: Pakistan, dated 25 January 2022;

    ·Guidelines on International Protection, UNHCR, HCR/GIP/03/04, dated 23 July 2003;

    ·Harjit Singh Randhawa v MILGEA [1994] FCA 1253;

    ·Article, ‘Informal economy in Pakistan’, undated, ILO Pakistan;

    ·Article, ‘Poverty in Lahore, Pakistan’, The Borgen Project, dated 6 June 2015;

    ·Pakistan Labour Force Survey 2018–19, Government of Pakistan;

    ·Article, ‘More Than 300,000 Afghans Flee to Pakistan Since Taliban Takeover of Afghanistan’, by Ayaz Gul, dated 16 December 2021;

    ·Article, ‘“Naya Pakistan”: 1.5 million unemployed Pakistanis apply for a peon’s post’, South Asia News, wionews.com dated 28 September 2021;

    ·Web page, Pakistan, UN Habitat, undated;

    ·Web page, Pakistan, World Food Programme dated 30 June 2021;

    ·Article ‘Pakistani police: Bomb in city of Lahore kills 3 wounds 28’ by Babar Dogar, Associated Press, ABC News dated 21 January 2022;

    ·Article, ‘Poverty in Pakistan rises to over 5% in 2020, estimates World Bank’, Business Standard News dated 22 June 2021;

    ·Web page, Responses to Information Requests, Immigration and Refugee Board of Canada dated 22 December 2020;

    ·The State of Pakistani Cities 2018, by UN Habitat;

    ·SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205 (25 September 2014);

    ·Article, ‘The Evolution and Future of Tehrik-e-Taliban Pakistan’, Carnegie Endowment for International Peace, by Abdul Sayed, dated 21 December 2021;

    ·Report, ‘The Next Frontier: Human Development and the Anthropocene – Pakistan’ UNDP 2020;

    ·Urban Crises and the Informal Economy: Surviving, Managing, Thriving in Post‑Conflict Cities, Urban Economy Branch, UN Habitat, dated September 2019;

    ·Article, ‘View of Housing Crises in Pakistan: Review of Population Growth and Deficiencies in Housing Laws and Policies’, by Azra Jabeen et al, International Journal of Science: Basic and Applied Research (2015) Volume 24, No 3;

    ·Web page, Unemployment, total (% of total labour force) Pakistan, The World Bank, dated 15 June 2021.

    ISSUES

23. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.

24. The issue in the review is whether the applicants have a well-founded fear of persecution in Pakistan due to their religion, the first applicant’s role providing security at an imambargah or for Shia religious leaders, threats from the second applicant’s cousin to whom she was once betrothed, or for any other reason, or whether complementary protection provisions otherwise apply.

25. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    DECISION-MAKING FRAMEWORK

    Criteria for a protection visa

26. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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.

27. 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.

28. 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).

29. 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.

30. 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.

    Credibility assessments

1. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1]

   [1] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

2. The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[2] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3]

   [2] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

   [3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, at pages 43–44.

3. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

   [4] MIMA v Rajalingam (1999) 93 FCR 220.

   [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

4. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision‑making.[6] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[7]

   [6] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

   [7] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

5. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[8]

   [8] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

6. The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect, the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, in particular at [8], [13], [17]–[19] and [27]–[28].

   Mandatory considerations

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

8. The Tribunal notes that at the time of the first hearing, the current DFAT Country Information Report: Pakistan was dated 20 February 2019 (the 2019 DFAT Report). In January 2022, DFAT released an updated country information report for Pakistan – the Country Information Report: Pakistan dated 25 January 2022 (the 2022 DFAT Report). Post-hearing submissions regarding changes in the information contained in the 2022 DFAT Report were made by the applicant, and both reports were considered in the context of the application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicants travelled to Australia on Pakistani passports and claim to be Pakistani citizens. Copies of their passports were provided to the Department and Tribunal. The delegate had no concerns about their claimed nationalities, and the Tribunal accepts the applicants are nationals of Pakistan and has assessed their protection claims accordingly.

10. The Tribunal finds that the applicants are citizens of Pakistan, which is also their receiving country for the purposes of the refugee and complementary protection assessments.

    Migration history

11. According to the delegate’s decision and the applicants’ submissions and evidence, the applicants’ migration histories are as follows:

    ·March 1991 – the first applicant travels to briefly [Country 4] and then returns to Pakistan.

    ·April 1991 – the first applicant moves to Rawalpindi to live with his sister.

    ·October 1991 – the first applicant returns to Lahore.

    ·August 1992 – the first applicant travels to Iran on a religious pilgrimage.

    ·August/September 1992 – the first applicant moves to Rawalpindi.

    ·February 1994 – the first applicant returns to Lahore.

    ·April 1994 – the first applicant returns to Rawalpindi.

    ·April 1996 – the first applicant returns to Lahore.

    ·September 1996 – the first applicant travels to [Country 4].

    ·September 1997 – the first applicant returns to Lahore.

    ·October 1999 – the first applicant travels to Quetta.

    ·November 1999 – the first applicant moves to Rawalpindi.

    ·October 2003 – the first applicant travels to [Country 3].

    ·February 2006 – the first applicant returns to Lahore.

    ·June 2006 – the second applicant visits her sister in [Country 2] and returns to Pakistan.

    ·December 2006 – the second applicant travels to Saudi Arabia for the hajj returning in January 2007.

    ·May 2008 – the second applicant travels to [Country 2] to visit her sister. The first applicant’s visa to [Country 2] is refused. The second applicant returns in July 2008.

    ·25 July 2011 – the applicants are granted Student TU-572 visas; the second applicant was the primary visa applicant on that visa.

    ·[Date] September 2011 – the applicants arrive in Australia on Student TU-572 visas.

    ·[Date] November 2011 – the second and third applicants return to Pakistan and the third applicant is left in the care of the second applicant’s family members.

    ·[Date] December 2011 – the second applicant returns to Australia.

    ·17 June 2013 – the applicants are granted a Bridging WA-010 visa which ceased on 31 July 2013.

    ·19 June 2013 – the applicants’ Student TU-572 visas ceased.

    ·31 July 2013 – the applicants are granted Student TU-573 visas (student further stay visas).

    ·September 2013 – the second applicant returns to Pakistan.

    ·[Date] October 2013 – the first applicant departs Australia; the first applicant returns to [Pakistan].

    ·[Date] October 2013 – the first applicant returns to Australia.

    ·17 January 2014 – the first applicant lodges a Residence Carer BU-836 visa application (as a dependent applicant) that was deemed invalid on 21 January 2014.

    ·[Date] June 2015 – the first and second applicants depart Australia.

    ·[Date] July 2015 – the first applicant returns to Australia.

    ·[Date] September 2015 – the second applicant returns to Australia.

    ·[Date] October 2015 – the third applicant returns to Australia (having been granted a student visa on 22 September 2015).

    ·13 November 2015 – the applicants lodge Permanent Protection (Subclass 866) visa applications and were granted an associated Bridging visa A.

    ·13 July 2016 – the applicants’ student visas ceased.

    Evidence

12. The first applicant was born in Lahore and claimed to be a Shia Muslim. The second applicant was also born in Lahore and was raised as a Sunni Muslim but describes herself as a ‘non‑denominational Muslim’. Both the first and second applicants testified that the third applicant, who was also born in Lahore, is being raised as a Shia Muslim. The applicants claim to be ethnically Punjabi.

13. In his statutory declaration to the Tribunal, the first applicant conceded some of the information included in his protection visa application was incorrect or out of date. The statutory declaration included annexures correcting this information which related to the first and third applicants’ family composition and the first applicant’s education, travel and employment history.

14. The applicant claimed that he was unrepresented when the application was made and his limited English skills gave rise to the incorrect information.

15. The Tribunal took evidence from the first and second applicant, and [Mr C] and [Mr D] gave evidence at the third hearing by telephone from Pakistan. The Tribunal found [Mr C] and [Mr D] to be credible witnesses. The Tribunal also accepted the first and second applicants’ evidence was generally credible, though the Tribunal considered aspects of their claims and experiences were exaggerated with a view to strengthening their claims for protection. The Tribunal found claims which had been raised late in the proceedings or had not been raised before the delegate lacked credibility as there was no reasonable explanation for why these claims were not raised earlier. This was particularly the case with respect to claims that the second and third applicants had been threatened by family members prior to the application for protection being lodged.

16. However, the Tribunal did accept, for the reasons articulated below, that the political and security landscape in Pakistan has shifted during the course of the application process and that some risks claimed by the applicants have crystalised during that period. That includes with respect to increasing religious division within the Pakistani community and specifically within the second applicant’s family where members are of both Shia and Sunni faiths. In that regard, the Tribunal considered the applicants’ evidence with respect to their changing circumstances in Pakistan to be credible.

17. The applicant claimed before the Tribunal that he would be at risk on return to Pakistan due to his Shia faith and his active involvement with his ‘uncle’s’ imambargah in the past. The applicant claimed that on [date] April 1990 he was working alongside companions headed to perform duties at the [specified] mosque. During the meeting, the applicant and his companions were fired upon by 6 SSP members on motorcycles.

18. Around February 1991 the applicant claims to have been threatened by a group of men when he was at the bazaar near his home. They were reportedly dressed like Sunni extremists. They said that if he didn’t cease his religious activities there would be consequences and his filthy beliefs would be buried with him. In March 1991 he and his family agreed to travel to [Country 4] for his safety. He tried to stay, but could not live there legally, and he was afraid of being put in immigration detention. According to the delegate’s decision he overstayed his visa and was asked to depart [Country 4] in March 1991.

19. The applicant claimed he really wanted to return to Lahore, however, as that was where he saw his place in the world, serving his Ullamas. On return he went to live with his sister in Rawalpindi but returned later to resume work with the imambargah.

20. In February 1992 the first applicant was appointed to manage volunteers for [Organisation 1] in the [named] area of Lahore. In 1992 the first applicant travelled to Iran on a pilgrimage with [Organisation 1]. On return he lived in Lahore until moving to Rawalpindi in September 1992 again following harassment in Lahore. He returned to Lahore 2 years later as his mother was ill but returned to Rawalpindi following her death.

21. The applicant claimed that in 1996 he began being harassed in Rawalpindi due to his religious observance there. He returned to Lahore to avoid harm to his sister with whom he had been living and his siblings sent him back to [Country 4] for his safety. They said he should stay there and try and remain there. In September 1997 he decided to return to Pakistan after he was warned by his [Country 4] employer that he was at risk of being detained in immigration detention in [Country 4].

22. In late 1997 the first applicant joined the TJP and in 1999 he travelled to Quetta with a group of religious leaders providing security for several months before returning to live in Rawalpindi. In 2000 he returned to Lahore and in 2002 married his first wife, [Ms E], who was Sunni.

23. In June 2002 the Majlis e-Aza for Azadari at the [specified] imambargah was attacked by a group of men on motorcycles, who shot at the Momineen. One security volunteer was killed in the attack. In April 2003 the first applicant was shot at by an armed man on the back of a motorcycle when he was returning to his home and another person was injured and admitted to hospital.

24. In October 2003 his then wife, [Ms E], and his siblings arranged for him to leave the country again due to fear of the applicant being harmed. [In] October 2003 the applicant left for [Country 3] on a Schengen Visitor visa. He hoped to return to Lahore once things calmed down. According to the delegate’s decision the applicant overstayed his visa and was asked to depart [Country 3] in February 2006. The applicant claimed he decided to return to Pakistan to be with his family and return to religious duties. He knew there was a risk if he returned, however it had been a long time since he was attacked, and his safety was not his priority when he made this decision. He denied being asked to depart [Country 3].

25. In March 2006 the first applicant and his first wife divorced. There are [number] children from that marriage with whom he does not have any contact. In the case of the [youngest] of the [children], he was born following the divorce and the first applicant has not met him. In April 2006 the first and second applicants completed their Nikkah.

26. Following the birth of their first child they applied for and obtained visas for the second applicant to study in Australia. The family moved to Australia in September 2011. Later that year they returned to Pakistan to leave their son in the care of family members as they were unable to care for him without family support and maintain the second applicant’s studies. The first applicant returned briefly in October 2013 to see his sister who was ill.

27. In June 2015 the couple returned to Pakistan to bring their son back to Australia. During that visit they were celebrating Eid and the first applicant was involved in activities at the imambargah. He participated in a fundraising meeting to discuss raising money for Shia who had been killed. On his way home the car he was travelling in was shot at. The car hit a wall. Police attended and returned fire with the shooters. A gunman was arrested at the scene and identified the shooters as the [named] brothers who were Sunni extremists known to the applicant prior to his move to Australia.

28. Following this attack the first applicant decided they would return to Australia and seek protection. He claimed he and his wife were terrified by the attack and realised they could not live safely in Pakistan. He obtained an FIR of the event to take with him to support his claims.

29. The applicant provided a statement from police (dated 12 June 2002) and number of police FIRs to support his claims regarding instances of violence in Pakistan. As discussed with the applicants at the hearing, DFAT raises concerns about potential fraud with respect to police reports from Pakistan noting at [5.54] of the 2022 DFAT Report:

    FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.

30. This caused the Tribunal to adopt a cautious approach to placing weight on the proffered FIRs as evidence that the recorded events occurred. There were also some inconsistencies in the documents, including a record of the first applicant being hit by bullets in one of the attacks, which the applicant did not claim in his application or interview.

31. However, in determining the weight to be placed on the reports, the Tribunal considers them in the context of the totality of the evidence concerning incidents in Pakistan. In the first applicant’s case having regard to the evidence and country information regarding attacks on Shia religious institutions during the relevant period, the Tribunal found the accounts of those events to be generally credible.

32. The Tribunal notes that with respect to the incident in 2015 the applicants submitted evidence of the first applicant undergoing medical treatment for injuries he claims occurred as part of the attack (when he hit his head in the car) and for treatment for post-traumatic stress disorder (PTSD). The Tribunal considered those documents supported the applicant’s account of the event, though they did not go to the reasons for the attack.

33. The first applicant’s claims with respect to his involvement with the imambargah and the incidents in Pakistan were supported by the evidence of [Mr D]. [Mr D] is a caretaker of an imambargah about 12 kilometres from the imambargah attended by the first applicant. [Mr D] testified that he had known the first applicant since 1986 and that they had been members of a community organisation together, [Council 1]. [Mr D] indicated he was not present at the attacks reported by the applicant, but that the incidents were well known in the community, as was the applicant’s involvement in them.

34. [Mr C] also gave evidence. He is the caretaker of the first applicant’s imambargah, a role which he took over from his father in 2019. [Mr C] testified that he has known the first applicant since he was a child and last saw him on his return visit in 2015. He said they met at the imambargah. That meeting was before the reported attack which he became aware of after the first applicant left Pakistan to return to Australia. He said the first applicant had reported the incident to his father who was now deceased. He did not know the details of the attack but knew that he had been attacked and had left because he felt unsafe. He said that prior to the applicant moving to Australia, they were like family. He stated the applicant had an active role in the meetings or the gatherings, and he was interested or involved in the religious matters. The Tribunal asked if he was aware of incidents prior to 2015 and he said his father knew more but he had been younger when the applicant first departed. The Tribunal asked if he knew what the applicant’s role had been and he said that ‘he played a big role in the religious gatherings, mostly just the security person keeping things under watch. Whenever I saw him he was always on duty.’ He had been in that role as long as [Mr C] could remember.

1. The Tribunal asked if [Mr C] had been attacked or targeted as the caretaker of the imambargah. He said, ‘Look, the thing is this is an imambargah, but it is in God’s hands, we live how long we live, it can happen any time’. He noted that there are targeted attacks and ‘they don’t attack everyone, they attack the important members.’ He recalled that his father had been subject to some bad attacks in the past, but he did not know the circumstances as he was young.

2. The Tribunal found both witnesses to be credible and considers that their evidence broadly supported the applicant’s claims particularly with respect to his active involvement with the Shia community in his local area of Lahore and his accounts of past instances of harm.

   Mental health issues

3. Both the first and second applicants claim to have been diagnosed with and treated for depression and other associated mental health issues. With respect to the second applicant it was submitted that she was taking medication for depression which may impede her memory and capacity to give evidence before the Tribunal.

4. The Tribunal accepts that both applicants have a history of mental health issues. The Tribunal made adjustments during the hearing to accommodate the applicants in this regard and bears in mind their mental health and personal histories in assessing their evidence.

   Submissions

5. The applicant’s representative made detailed written submissions prior to and following the hearing.

6. It was submitted that the first applicant faces a real risk of serious and/or significant harm if involuntarily returned to Pakistan, including:

   ·sectarian and/or religiously motivated mob violence targeting Shia when participating in religious festivals, conferences, and other events;

   ·sectarian and/or religiously motivated mob violence targeting the first applicant as a known, prominent Shia individual;

   ·sectarian and/or religiously motivated mob violence targeting the first applicant for his religious practices;

   ·prosecution for blasphemy and associated harm; and/or cruel, inhuman and/or degrading treatment or punishment directed at Shia Muslims in Pakistan.

7. It was also submitted that the second and third applicants face a real risk/chance of serious or significant harm on the basis of the first applicant’s Shia faith, profile and/or manner of practising his faith, or that any harm to the first applicant will result in serious and/or significant harm for the second and third applicants.

8. The applicant submitted that the risk of harm applied to all areas of Pakistan given the capacity of anti-Shia extremists to operate throughout Pakistan, and that in any event, having regard to country information and the applicants’ personal circumstances, the family could not reasonably relocate elsewhere in Pakistan where they lacked family support and would face challenges establishing themselves.

   Analysis, reasons and findings

   Claims

9. Before the delegate, the second and third applicants relied on the first applicant’s claims for protection which centred on his claim that as a prominent Shia Muslim he fears harm from Sunni extremists. Before the Tribunal, the applicants claimed also to be at risk from the second applicant’s family due to their Sunni/Shia inter-sect marriage, and from the second applicant’s cousin, [Mr B], who had extremist sympathies and considered he had been betrothed to the second applicant prior to the first and second applicants’ marriage. The applicants claimed that [Mr B] had threatened the third applicant while he was living in Pakistan and that they remained at risk of harm from [Mr B] who sought retribution against the first and second applicants.

10. While additional claims were made before the Tribunal, the applicants’ central claims were that they face a risk due to the first and third applicant’s Shia faith.

11. According to country information, Shia Muslims are the largest minority religious group in Pakistan, around 15–20% of the Muslim population.[9] Shia mosques and places of worship, or imambargahs, are located throughout Pakistan.[10]

    [9] ‘International Religious Freedom Report for 2019 – Pakistan’, US Department of State, 10 June 2020, pp.3-4; 'PAK200384.E - Pakistan: Differences between Shia [Shi'a, Shi'i] and Sunni Muslims; procedure to convert to Shi'ism; the situation and treatment of Shia Muslims by society and authorities, particularly in major cities (Lahore, Islamabad, Karachi, Hyderabad', Immigration and Refugee Board of Canada, 4 December 2020.

    [10] DFAT Thematic Report: Shias in Pakistan', Department of Foreign Affairs and Trade, 15 January 2016, section 3.3.

12. Shias continue to face security threats from extremist groups and social discrimination from the public.[11] Country information suggests that there are attacks on Shia by Sunni extremists, particularly during the Muslim month of Muharram, but that ‘Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shia clerics from leaving home and by cutting off mobile phone services in major cities during processions.’[12] In the latter half of 2020, large sectarian rallies in Karachi and Islamabad and a spike in blasphemy accusations against Shias raised concern about increasing tensions and targeting of members of the Shia community for harm.[13] On 5 March 2022 a suicide bomb inside a Shia mosque in Peshawar killed at least 56 people and injured 194 others.[14]

    [11] USCIRF 2020 Annual Report, US Commission on International Religious Freedom, April 2020, p.33.

    [12] Ibid [3.59].

    [13] ‘Pakistan: Hardline Sunni groups on collision course with Shiites’, S. Khan, Deutsche Welle, 14 September 2020; see also ‘The Changing Landscape of Anti-Shia Politics in Pakistan’, Jaffer A. Mirza, The Diplomat, 28 September 2020; ‘Pakistani Shias live in terror as sectarian violence increases’, Shah Meer Baloch and Hannah Ellis-Petersen, The Guardian, 21 October 2020.

    [14] Bombing of Shiite mosque in Pakistan kills at least 56, wounds 194 worshippers, Emily Griffith, Action on Armed Violence, 03 March 2022.

13. Terrorism in Pakistan has generally declined over the past decade, but the underlying roots behind the sectarian attacks against Shia Muslims remain. According to the Center for Research and Security Studies, 2,099 people were murdered in Pakistan because of their religion in the years from 2013 to 2018, and over half of these (1,104) were Shia. Since 2009 2 upsurges in terror-related incidents occurred, the first was in 2013 and the second in 2021. Whilst the continuous operational and surveillance campaigns by Pakistan’s security forces and police’s Counter Terrorism Department (CTD) under the National Action Plan have contributed to the declining trend in terrorism, the upward surge in 2021 suggests militants have increased their presence and activities in Pakistan.[15]

    [15] ‘CRSS Annual Security Report Special Edition 2013-2018’, Center for Research and Security Studies, March 2019, pp.57-58. The report indicates that 289 were ‘Shia Hazaras’ and 815 were ‘Shias’. It does not break down the deaths of Shias by province or area. ‘Pakistan Security Report 2021’, Pakistan Institute for Peace Studies (PIPS), January June 2022, p.20.

14. DFAT notes that in 2020, there were 146 terrorist attacks, in which 220 people were killed and 547 were injured. From January–July 2021, 97 terrorist attacks were recorded, resulting in 300 fatalities and 765 injuries. These attacks occurred across Pakistan, including in Khyber Pakhtunkhwa, Balochistan, Punjab and Karachi. On 20 January 2022 a bombing attack was carried out in Lahore which killed at least 3 people and wounded 28. This attack was claimed by the newly formed separatist group, Balochistan Nationalist Army. DFAT also refers to the bombing of a Shia procession in Punjab in August 2021, which killed at least 3 people and injured 50.

15. DFAT reports that:^:[16]

    religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies (such as the TLP).

    [16] 2022 DFAT Report at [3.31].

16. Country information suggests that prejudice against Shia extends to regarding Shia as non‑Muslims or blasphemers, with DFAT noting:[17]

    Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a.

    [17] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 2022 at [3.58].

17. However, the UK Home Office finds that ‘[r]elative to the overall number of Shias in Pakistan, the risk of being accused and charged with blasphemy is, in general, very small’.

18. DFAT assesses in the 2022 DFAT Report that:[18]

    Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk societal discrimination in the form of anti-Shi’a protects and community violence.

    [18] 2022 DFAT Report at [3.6].

19. The applicant submitted that the 2019 DFAT Report had assessed that ‘most Shi’a in Pakistan face a low risk of sectarian violence’. However, the change in the more recent assessment that Shia in Pakistan face a moderate risk of sectarian violence and a moderate risk of societal discrimination represented a significant change, indicating that despite apparent improvements in the situation for Shia in Pakistan in the recent past, the current situation means that the applicants face a real risk of serious harm in Pakistan.

20. The Tribunal accepts that sectarian violence occurs in Pakistan, however country information suggests that the chance of the applicants being harmed in an attack against Shia by Sunni extremists is generally moderate and that more significant events centre around religious festivals. Having regard to country information the Tribunal finds that Shia Muslims in Lahore do not face a real chance of serious harm or a real risk of significant harm on the basis of their Shia religion alone.

21. The applicant submitted that the deteriorating situation for Shia in Pakistan, reflected in the changed DFAT assessment, is particularly significant given that a central element of the first applicant’s practice of his Shia faith is ‘his belief in the importance of protecting the lives of senior religious figures in the Shia community’. It was submitted that:

    [a]s the threat of violence towards Shia individuals increases, so too does the compounded risk faced by the Applicant as a security personnel. The Applicant’s previous involvement with providing security for religious figures and institutions suggests that this is a practice that the Applicant would re-engage in were he to return to Pakistan. The Tribunal should thus consider that this profile/ practice raises the risk that the Applicant faces to higher than the already ‘moderate’ risk faced by most Shia.

22. It was submitted that the deteriorating security situation in Pakistan and increased risk of sectarian violence suggest that the first applicant, as a Shia, and in his capacity as a security person for important Shia individuals, would face a heightened risk of harm. The applicant claimed as a devout Shia he would continue to engage in religious pilgrimages to Iran and Iraq and that he may be targeted while travelling to shrines and participating in Shia conferences and events in other parts of Pakistan as he had in the past.

23. The applicants also submitted that the first applicant faced an elevated risk of harm as a devout Shia in the Punjab. It was submitted that the increase in oppression of religious minorities has been particularly severe in Punjab, citing the US State Department report on religious freedom for 2020 which records multiple resolutions, laws and bills of the Punjab Provincial Council which target religious minorities.[19] The applicants also submitted that in June 2020, the Punjab Provincial Council passed a bill which restricted publication of interpretations of Islam associated with minority sects, which among other items would require specific honours to be used after the names of Mohammed’s companions. It was submitted that these measures are directed at curtailing the free expression of Shia religious belief in Punjab Province, and forcing Shia to profess beliefs they do not hold in order to appease conservative Sunni factions. Thus, The Diplomat describes this bill as ‘basically impos[ing] the Sunni view of the first three caliphs on Shias’.[20] It was submitted that such laws restrict the religious practice of Shia Muslims and that ‘any harm resulting from these laws amounts to persecution for reason of religion.’ It was also submitted that given the first applicant’s strongly held Shia religious convictions, he will not comply with restrictions of this kind and this further exacerbated his risk of being accused of blasphemy.

    [19] Pakistan 2020 International Religious Freedom Report, US Department of State.

    [20] ‘The Changing Landscape of Anti-Shia Politics in Pakistan’, The Diplomat, 28 September 2020.

24. As discussed with the applicants, having regard to the country information, the question for the Tribunal is whether they have a particular profile that would raise their exposure such that they would face a real chance of serious harm or a real risk of significant harm on the basis of the first applicant’s religious beliefs.

25. The applicants claim to be at an elevated risk of harm from extremists on the basis of the first applicant’s devout Shia faith and inter-sect marriage and his historical role providing security at the imambargah, a role which he considers himself religiously bound to resume on return to Pakistan. The applicants also submit that they face an elevated risk of harm as Shia in the Punjab due to increasing sectarian sentiment in the Punjab including towards the Shia community there.

26. The Tribunal accepts on the evidence that the first applicant was actively involved in his imambargah in Pakistan, noting, however, long periods of absence from Pakistan when he was living and working in [Country 4] and [Country 3]. While the applicant claims he was fleeing harm on those occasions, the Tribunal notes he did not consider the risk of harm at that time to be such as would prevent his return. It is not suggested that he sought protection or sought to resettle permanently in either country on this basis.

27. The Tribunal notes there was no evidence of the first applicant playing a prominent role in the Shia community in Australia as might be expected given his claimed religious profile in Pakistan. The first applicant maintained that his particular responsibility is to his imambargah in Pakistan and that there is no imambargah in Perth for which he could perform the same role. He did maintain however to be a devout follower of the faith and to living as a practising Shia in an inter-sect marriage. He noted the inter-sect nature of the marriage did not present an impediment to his practice in Australia but would carry risks for his family in Pakistan given increased sectarian animosity towards Shia.

28. The applicants also claimed to be at risk because of their inter-sect Shia/Sunni marriage, generally, and from the second applicant’s family members. These claims were not raised before the delegate. In the Tribunal’s view, there was no reasonable explanation for why the claims were not raised earlier to the extent that the second applicant claimed increasing family hostility and threats from [Mr B] were present prior to the protection application being made. The Tribunal considered the second applicant’s family composition, as a child of a mixed Sunni/Shia marriage of which the children had chosen to marry both Sunni and Shia spouses with the consent of their parents, suggested a degree of tolerance towards intersect marriages. This was consistent with country information which suggests that mixed Sunni/Shia marriages are historically commonplace in Pakistan.[21] Also, the fact the third applicant had been left in Pakistan, living with Sunni family members, suggests that the first and second applicant did not consider there was a risk from family members arising from the inter-sect marriage or the first applicant’s Shia faith.

    [21] DFAT Thematic Report: Shias in Pakistan, 15 January 2016.

29. The second applicant claimed her Sunni family members had become more extreme over time, in particular through the more extreme Wahabi views emerging on her mother’s side of the family. In this regard, the Tribunal notes that the second applicant claimed [Mr B] has connections to SSP and other extremist groups however, no evidence was offered to support these claimed links.

30. Having regard to country information cited earlier regarding the increase of sectarian views in Pakistan, and relevantly in Punjab, the Tribunal accepts it is possible that family divisions have increased in the period since the applicants left Pakistan. The Tribunal notes the second applicant has 2 sisters who married Shias and who she says have continued to welcome her in Pakistan. Further, the first applicant has siblings who have provided support in the past. There was no suggestion they would not continue to do so in the future. Given these factors, the Tribunal does not accept that the applicants face a risk of serious or significant harm from the second applicant’s family members for reasons of their marriage. However, the Tribunal does accept that in an environment of increased sectarian intolerance, animosity from the second applicant’s family could draw attention to the applicants’ Shia connections and draw adverse attention to other adverse aspects of their profiles on that basis.

31. With respect to the claimed risk from [Mr B], the Tribunal does not accept those claims are credible. Unlike the changed attitude of the family, there was no explanation as to why threats from [Mr B] would not have been raised in the original application. Further, there was no credible explanation as to why [Mr B] would have become interested in retribution for the applicants’ marriage years after the event. The Tribunal does not accept the applicants face any real risk of serious or significant harm from [Mr B], or his family members, due to the failed betrothal to the second applicant.

32. While not specifically claimed by the applicants, the Tribunal has also considered whether the applicants face a real chance of serious or significant harm as returnees from a western country.

33. DFAT assesses that returnees are ‘typically’ able to reintegrate in Pakistan, noting some may be in debt to people smugglers. As the applicant left Pakistan lawfully on a valid visa and did not claim any risk due to debts in Pakistan, this qualification does not appear to apply to their circumstances. Further, DFAT finds that Pakistanis do not face a ‘significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country’.[22] DFAT goes on to note ‘societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad’.[23]

    [22] 2022 DFAT Country Report at [5.30].

    [23] Ibid.

34. The applicants testified that they are practising Muslims. The first and second applicants were educated in Pakistan and are familiar with its language and customs. The third applicant faces more challenges in this regard as he has now spent a significant portion of his life in Australia and is likely to be more challenged by adjusting to a return to Pakistan, particularly if he seeks to practice as a Shia. However, he has lived and attended school in Pakistan in the past, suggesting a level of familiarity with the social and cultural norms of Pakistan which should enable him to resettle their under the care of his parents. Based on the applicants’ circumstances and country information, the Tribunal does not accept that there is a real chance the applicants would suffer serious harm for the essential and significant reason of being returnees from the west alone.

1. The Tribunal does accept the first and second applicants have both been diagnosed with depression or PTSD (in the case of the first applicant) in the past and that this may make resettling in Pakistan more challenging. The applicants did not claim and the Tribunal does not accept that they would face a real risk of serious or significant harm on the basis of any current or past mental health issues. However, the Tribunal does accept that their history of depression may impact the applicants’ ability to avoid adverse attention from extremists due to other aspects of their profile.

   The first applicant’s cumulative profile

100.   The Tribunal accepts the first applicant has the following cumulative profile:

·He and his son’s are Shia Muslims;

·He is married to a Sunni Muslim;

·He has been an active member of the Shia community in Lahore including membership of Shia community organisations and working over a number of years providing security for the local imambargah;

·While working with or attending the imambargah he has been involved in violent attacks directed at the imambargah or its Shia leadership;

·He was shot at on a return visit to Pakistan in 2015 though it is unclear if he was specifically targeted in the attack;

·He was a member of TJP and may resume support for the TJP on return to Pakistan;

·He would practise as a Shia Muslim in Pakistan including working at the imambargah, being involved in Shia community organisations and committees and participating in significant cultural festivals and would involve his son in Shia activities in Pakistan;

·He would engage in religious pilgrimages in Pakistan;

·He would be a returnee from the west who has spent significant time outside Pakistan and whose family members have studied in Australia, including his wife who has studied at a tertiary level in Australia;

·He has suffered mental health impacts from events in Pakistan including depression and PTSD. His wife also suffers from depression for which she is receiving ongoing treatment.

101.   Having considered the first applicant’s claims individually and cumulatively, the Tribunal has considered what will happen if the first applicant were to return to Pakistan, now or in the reasonably foreseeable future, with his family members.

102.   As noted above, the Tribunal does not accept some aspects of the applicants’ claims. The Tribunal has found that the applicant does not face a real chance of serious harm on the basis of being a member of the Shia community alone, or on the basis of threats from the second applicant’s family members. The Tribunal did not accept the first applicant or his family would be at risk from [Mr B] or the [named] brothers for reasons of a personal grudge against him, the second applicant or the family.

103.   However, taking into account what the Tribunal has accepted of the first applicant’s claims and his profile, and considering these cumulatively, the Tribunal finds that the first applicant’s personal profile as a devout Shia active in the community and security at a Shia religious site raises his risk of being seriously harmed on return to Pakistan for reasons of his religion and political opinion as a supporter of the TJP to the level of a real chance of serious harm. In particular, the Tribunal considers that the first applicant’s combined profile and personal circumstances expose him to a real chance of coming to the attention of Sunni extremist groups or anti-Shia elements of Pakistani society and suffering serious harm as a result of and for the essential and significant reason of his religious and political beliefs.

104.   The Tribunal accepts the applicant and members of his family are suffering mental health issues. The Tribunal does not accept there is a real chance of serious harm on that basis alone but does accept that mental health issues would impact his family’s ability to mitigate the general risks of harm they may face on return to Pakistan. In the first applicant’s case, that leaves him exposed to a real chance of serious harm from religious extremists now and in the reasonably foreseeable future on return to Pakistan.

105.   The Tribunal finds that there is a real chance, that is, one that is not remote or far‑fetched, that if the applicant returns now or in the reasonably foreseeable future to Pakistan, he will face serious harm amounting to persecution from religious extremist groups operating throughout Pakistan.

106.   The Tribunal accepts that the first applicant is a devout Shia Muslim who holds views supportive of the TJP and opposed to Sunni extremists groups in Pakistan. The Tribunal accepts these views may bring him to the attention of the extremist groups in the Punjab. The Tribunal accepts that the first applicant will practise openly as a Shia in Pakistan and will be recognised as a Shia if he returns to Pakistan.

107.   These factors individually may not lead to the applicant being harmed by non‑state actors. However, considering all the factors cumulatively, including reports of rising sectarian violence following the rise of the Taliban government in Afghanistan, the Tribunal is satisfied that there is a real chance that the first applicant will be seriously harmed if he returns to Pakistan.

108.   The Tribunal accepts that should the first applicant return to live in Lahore, now or in the reasonably foreseeable future, there is a real chance he will face ‘serious harm’, of the types noted above, from non-state actors if he engages in religious activities as he has done in the past and continues active involvement with Shia community groups and his imambargah, as required by s 5J(4)(b) of the Act, in that it involves a threat of significant physical harassment or ill‑treatment. The Tribunal considers that the instances of harm which the applicant may suffer constitute ‘serious harm’, having regard to s 5J(5) of the Act. The Tribunal is satisfied that the persecution would be for reasons of his religion and political opinion and that the criteria set out in s 5J(1)(a) and (b) of the Act are met.

109.   The law provides that it is not sufficient that a person has a real chance of being persecuted only in a particular part of the receiving country. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country.

110.   Having regard to the applicant’s cumulative adverse profile, the Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is his religion and his real or imputed political opinions, as required by s 5J(4). The Tribunal assesses that the applicant, as an active Shia Muslim who is involved in Shia community work and imambargah security and religious activity, faces a chance of being targeted by non‑state religious actors holding extremist Sunni Muslim views. This heightens the chance of serious harm to the applicant.

111.   The Tribunal considers the persecution which he fears involves systematic and discriminatory conduct, in that it is deliberate or intentional and involves the selective harassment for reason of his political opinion.

112.   Further, the Tribunal is satisfied that this harm involves systematic and discriminatory conduct, as required by s 5J(4)(c) of the Act, in that the persecution which he fears involves conduct that is deliberate or intentional and involves his selective harassment for reason of his religion as a Shia Muslim and real or imputed political opinion as a supporter of the TJP and religion.

1. Section 5J(2) of the Act provides that an applicant to whom effective protection measures are available does not have a well-founded fear of persecution. Section 5LA(1)(b) requires that the relevant State must be both willing and able to offer the relevant protection. It is in this context that the Tribunal has considered whether effective protection measures as defined in s 5J(2) and s 5LA of the Act are available to the applicant. The State will be taken to be able to provide protection against persecution if the person can access the protection, the protection is durable, and, in the case of protection provided by a State, there is an appropriate criminal law, a reasonably effective police force and an impartial judicial system. These are findings of fact, to be assessed based on the evidence before the decision‑maker.

114.   Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection.[24] In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards.[25]

[24] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28].

[25] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29].

1. The Tribunal is not satisfied that the applicant can access the protection of the Pakistani State, nor is there a reasonably effective police force to protect him from political and religious violence of the types identified, for the purposes of ss 5LA(2)(a) and (c) of the Act. Based on credible country information, the Tribunal is not satisfied that the State is able to offer protection to the applicant. Given the nature of sectarian violence targeting active members of the Shia community in the Punjab, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to the applicant in Pakistan as provided by the State. Accordingly, the Tribunal finds that effective protection measures are not available to the first applicant for the purposes of s 5J(2) of the Act.

116.   The Tribunal notes that s 5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. The Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm.[26] In this case, the Tribunal is satisfied that the modification would require the applicant to alter his religious observance or political opinions, which cannot be expected of him.

[26] Appellant S395/2002 v MIMA (2003) 216 CLR 473.

117.   In this case, the Tribunal is satisfied that the modification would require the applicant to modify his ‘political beliefs or conceal his true political beliefs’ and/or conceal his ethnicity, which the Tribunal is satisfied he would be unable to do, and therefore s 5J(3) does not apply.

1. The Tribunal has considered if the applicant faces a real chance of persecution in all areas of Pakistan as required by s 5J(1)(c). Country information indicates that sectarian violence occurs throughout Pakistan, and that after significant decreases in violent incidents over a number of years, anti-Shia sentiment appears to be increasing in some areas of Pakistan. Country information also indicates that sectarian terrorist groups retain the capacity and intent to carry out attacks against Shia anywhere in the country. Sectarian sentiment which targets minority groups in Pakistan includes the enactment of laws targeting non-Sunnis in states including the Punjab. The Tribunal is not satisfied that there is any part of Pakistan in which the applicant would be safe from the persecution that he fears as a devout Shia and a supporter of Shia community organisations perceived to be opponents of Sunni sectarian groups with anti-Shia agenda. Having regard to country information regarding the risks for Shias active in religious organisations and activities, the Tribunal is not satisfied that the State will take reasonable measures to protect him by reference to international standards.

119.   Having regard to the first applicant’s circumstances, the Tribunal regards that given the family status, the length of time he has been out of Pakistan and the family’s diagnosed mental health issues, it would not be reasonable, in the sense of practicable, to expect them to relocate to another area of Pakistan even if one were available where the risk of harm was not present.

120.   Having regard to the country information, the Tribunal considers that the applicant’s personal cumulative profile places him at risk of persecution throughout Pakistan now and in the reasonably foreseeable future. The Tribunal is not satisfied that there is any part of Pakistan in which he would be safe from the persecution.

1. Accordingly, the Tribunal accepts that the first applicant has a well-founded fear of persecution. The Tribunal accepts that the applicant is outside the country of his nationality or former country of habitual residence and unable, or, owing to the fear of persecution, is unwilling to return to it.

2. In considering whether the first applicant comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

3. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Act.

   Second and third applicants

124. For the reasons given above, the Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

125. The Tribunal is satisfied that the second applicant is the wife of the first applicant and is a member of the same family unit as the first applicant for the purposes of s 36(2)(b)(i). As such, as the fate of her application depends on the outcome of the first applicant’s application, it follows that the second applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

126. The Tribunal is satisfied that the third applicant is the child of the first applicant and is a member of the same family unit as the first applicant for the purposes of s 36(2)(b)(i). As such, as the fate of his application depends on the outcome of the first applicant’s application, it follows that the third applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

127.   The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first applicant satisfies s 36(2)(a) of the Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Act, based on their membership of the same family unit as the first applicant.

Simone Burford
Senior 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.

…