1724212 (Refugee)

1724212 (Refugee) [2018] AATA 250 (8 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724212
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Alison Murphy
DATE:8 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2018 at 4:03pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Particular social group – Persons who refuse to join Shia militant groups – Religion – Shia Muslim – Fear of sectarian violence – Fear of harm from political parties – Fear of harm from family member – Impact of medical conditions on evidence – Witness credibility – Inconsistency – Delay in protection application
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 425, 429A, 438, 499
Migration Regulations 1994, Schedule 2
CASES
BXD15 v MIBP [2017] FCA 1209
MIAC v Li [2013] HCA 18
MIAC v MZYHS & Anor [2011] FCA 53
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MZAFZ v MIBP [2016] FCA 1081
MZWZB v MIMA [2006] FMCAA 4211
Nagalingam v MILGEA (1992) 38 FCR 191,
Prasad v MIEA (1985) 6 FCR 155
SZJTK v MIAC [2008] FCA 1712
SZNPK v Minister for Immigration and Citizenship [2009] FCA 1271
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 [in] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [age] male citizen of Pakistan who applied for the visa [in] August 2015. He seeks to invoke Australia's protection obligations so that he does not have to return to Pakistan where he claims to fear harm from Sunni and Shia militant groups, Muttahida Quami Movement (MQM) and from his father.
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person.
In assessing the applicant’s claims, I have taken account of policy guidelines prepared by the Department of Immigration and Border Protection (DIBP) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, I have concluded that the decision under review should be affirmed.
History of proceedings
The applicant provided a copy of the delegate’s decision to the Tribunal with his review application. The delegate’s decision records the applicant entered Australia [in] June 2012 as the holder of a [temporary] visa, which was cancelled [in] January 2014 when the applicant failed to enrol in a course of study. [In] June 2015 he was remanded and charged with [number] instances of [criminal offences]. [In] July 2015 he was convicted of those offences and sentenced to [details deleted]. On the same date he was placed in immigration detention.
The applicant applied for the protection visa [in] August 2015. The delegate refused to grant the visa [in] October 2015, not being satisfied the applicant was owed protection by Australia. The applicant sought a review of the delegate’s decision from this Tribunal and on 4 January 2016 this Tribunal (differently constituted) affirmed the delegate’s decision.
[In] October 2017 the first Tribunal’s decision was set aside by the Federal Circuit Court of Australia. A consent order made on that date indicates the Tribunal fell into jurisdictional error by not disclosing the existence of a certificate issued pursuant to s.438(1)(a) of the Act. The matter is now before the Tribunal pursuant to that order of the Court.
Non-disclosure certificate
The departmental file contains a certificate issued pursuant to s.438(1)(a) of the Act dated [in] November 2015. While a Disclosure Decision Checklist dated [in] October 2017 completed by DIBP indicates they no longer seek to rely on the certificate dated [in] November 2015, the certificate does not appear to have been formally withdrawn or revoked.
The Tribunal formed the view the s.438(1)(a) certificate is invalid as the certificate states that the disclosure of the information would be contrary to the public interest because it contains information relating to an internal working document and business affairs. In MZAFZ v MIBP, the Federal Court held that such reasons had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure.[1] For these reasons the Tribunal provided to the applicant a copy of the documents identified in the certificate dated [in] November 2015. No submissions were made to the Tribunal about the s.438(1)(a) decision at hearing or in the post-hearing written submissions.
[1] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37]. See also BXD15 v MIBP [2017] FCA 1209
In any event the Tribunal has not relied on information contained in the documents subject to the certificate dated [in] November 2015, which consists of the written record of a compliance interview conducted with [the applicant] [in] July 2015 and an internal working document which makes reference to [the applicant]’s criminal convictions and allegations he worked illegally. The Tribunal notes that the information contained in those documents, to the extent that it may be considered to be relevant to the decision under review, is available in other documents on the departmental file, including the delegate’s decision dated [in] October 2015.
Matters put to the applicant pursuant to section 424A
At hearing the Tribunal discussed with the applicant information submitted in support of his [temporary] visa application which appeared inconsistent with his claims for protection.
On 12 December 2017 the Tribunal wrote to the applicant pursuant to the provisions of section 424A. An extension of time to respond to that letter was subsequently granted by the Tribunal. On 22 December 2017, the applicant’s representative responded to that letter by providing further submissions and a statutory declaration made by the applicant on 21 December 2017.
Capacity to give evidence at hearing and request for in person hearing
The applicant appeared before the Tribunal by video conference on 11 December 2017 to give evidence and present arguments. At the time of the Tribunal hearing, the applicant was in immigration detention [at location]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages, although the applicant advised the Tribunal he preferred to give his evidence in English except in some parts of the hearing where he utilised the services of the interpreter. The applicant was represented in the review by his registered migration agent who attended the Tribunal hearing.
Prior to the hearing the applicant’s representative submitted it was not appropriate for the Tribunal to exercise its discretion under s429A to allow the applicant to participate in the hearing by video-conference and that proceeding with the hearing would result in a miscarriage of the discretion and result in jurisdictional error of the kind identified in SZNPK v Minister for Immigration and Citizenship.[2] It was submitted that:
·the assessment of credibility would be central to the Tribunal’s decision making process and the use of video conferencing facilities would hinder the Tribunal’s ability to conduct a proper assessment of credibility;
·his mental state needed further investigation and he was not receiving appropriate medical care in detention. It was submitted medical evidence indicated he may have [specified conditions];
·the applicant often becomes irate and finds it difficult to communicate and would be assisted by being present in person to have access to his legal representative;
·the applicant is in long term immigration detention which affects his mental and emotional state and is fearful [at his current location] because asylum seekers are abused and assaulted by other people inside;
·the applicant has never met his legal representative in person and it has been extremely difficult to receive instructions and provide advice because of his detention [at his current location].
[2] [2009] FCA 1271 (6 November 2009) at [12]
I have considered the medical evidence lodged with the Tribunal, being a psychiatric assessment dated [in] November 2017 completed by [Dr A], consultant psychiatrist. [Dr A] states in her report that she spoke to the applicant for 90 minutes by Skype and had access to his International Health and Medical Services (IHMS) records. She recounts in some detail his personal history, his reported experiences in Pakistan and Australia and his [criminal] offending in Australia describing the applicant as irritable, agitated and becoming unusually angry during the interview. She states he reports no past psychiatric history and is not taking any medication. Her report notes a psychiatric assessment was conducted by [name], IHMS psychiatrist [in] July 2016 who reported ‘the available info does not indicate a psychiatric condition or provide grounds to support t’fer [to another location]. Unlikely to benefit from psychotherapy. Meds not indicated at present.’
[Dr A] reports that during a mental state examination the applicant [displayed symptoms]. She states if he were malingering she would expect a lot more charm and persuasion and his extreme agitation and irritability was incongruous with her role in assisting his lawyer with an assessment. She reports she was unable to ascertain any psychotic symptoms, delusions or hallucinations but had the distinct impression of an ‘odd’ affect.
At hearing the Tribunal observed the applicant answered the Tribunal’s initial questions about his background and personal circumstances calmly and responsively. He later became agitated, particularly when discussing the whereabouts of his siblings, telling the Tribunal it had no relevance to his claims. He again became agitated when the Tribunal discussed with him documents on his [temporary visa] file which did not appear to support his claims. He spoke at length about his frustration with his ongoing detention, his belief that he should not be [at his current location] and his perceived mistreatment by his [relative] in Australia and the Australian authorities.
I accept the applicant is angry and frustrated about his continuing stay in immigration detention [at location]. I note he was assessed by a psychiatrist in June 2016 who assessed he did not have a psychiatric condition or require medication and he was unlikely to benefit from psychotherapy. In November 2017 [Dr A] noted his ‘odd’ affect and unusual mental state, but stated she was unable to ascertain any psychotic symptoms, delusions or hallucinations.
I accept the applicant is suffering from significant stress as a result of his prolonged detention and his perception of the unjust way he has been treated in Australia and this may account for the angry outbursts described by [Dr A] and apparent at the Tribunal hearing. However I note the applicant has not been diagnosed with any mental health condition by [Dr A] or his treating doctors [at location], including those conditions listed by the applicant’s representative in the submission dated [in] December 2017 (see paragraph 14, dot point 2).
In considering the applicant’s request for an in-person hearing, the applicant’s representative conceded the Tribunal has no power to order or require the Minister to transfer the applicant back to [city] to attend the hearing in person. The applicant’s representative made the appropriate request for transfer to DIBP and the Tribunal has not been made aware of DIBP’s response to that request, if any.
Section 425 of the Act requires that the Tribunal give an applicant an opportunity to appear before it to give evidence and present arguments. However it does not require that the applicant’s appearance be ‘in person’.[3] Section 429A of the Act provides that, for the purposes of the review, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by telephone, closed circuit or any other means of communication. This is a discretionary power and is intended to broaden the range of methods the Tribunal may use to facilitate a personal appearance by an applicant or another person at a hearing.[4]
[3] SZJTK v MIAC [2008] FCA 1712 at [23]
[4] SZNPK v MIAC [2009] FCA 1271 at [19]; at [127] of the Explanatory Memorandum to Migration Legislation Amendment Bill (No 1) 1998
In exercising its discretion to allow an applicant’s appearance be undertaken by telephone, closed circuit or any other means of communication, the Tribunal must exercise its discretion reasonably and having regard to all the relevant circumstances of the case, including: whether the applicant’s appearance by such technology would give the applicant a fair opportunity to give evidence and present arguments; whether its questioning of the applicant is likely to be conducted fairly and effectively; whether it would be able to properly make any necessary assessment of the applicant’s credibility; whether it may need to put a large quality of documents to the applicant; and whether delays and costs may be caused if the appearance were not to be conducted in that way.[5] Further guidance on relevant factors to be considered in hearing arrangements for persons in detention is also set out in part 6 of the ‘Conducting Migration and Refugee Reviews President’s Direction’ dated 30 June 2015.
[5] MIAC v Li [2013] HCA 18; SZJTK v MIAC [2008] FCA 1712 at [26]
In light of the concerns expressed about the applicant’s ability to participate in a video hearing, the Tribunal made a number of adjustments to its usual hearing process. The Tribunal delayed the commencement of the hearing to allow the applicant’s representative private access to its video conferencing facilities for a period prior to the commencement of the hearing and during breaks in the hearing in order to take instructions from and give advice to the applicant. The Tribunal advised the applicant and his representative that it was happy to adjourn the hearing at any time to allow the applicant to talk to his representative if requested and to allow post-hearing submissions to be made. The applicant confirmed he was alone in the interview room during the Tribunal proceedings. Both the picture and sound were clear and consistent throughout the hearing and there were no unscheduled breaks or interruptions to the video link.
I consider the applicant was able to respond to the Tribunal’s questions spontaneously and relevantly at hearing. He was represented during the review process and given time before and during the Tribunal hearing to consult with his representative. His representative was granted time after the hearing to provide further submissions. I am satisfied he has the capacity to participate in the review application and that he has been provided with a real and meaningful invitation to give evidence and present arguments relating to the issues in this case.
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility
I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[6] However 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. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[6] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an 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 accept uncritically any and all of the allegations made by an applicant.[7]
[7] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
As discussed with the applicant at hearing, I have significant concerns about the credibility of the applicant’s claims because of the way they have changed over the course of these proceedings. I am also concerned that some of his claims are contradicted by documentary evidence produced by the applicant in support of his [temporary] visa application. In making my findings I have given no weight to the applicant’s demeanour or behaviour at hearing. Rather any adverse credibility findings are based on inconsistencies between the applicant’s protection claims and documents previously provided in support of his [temporary] visa application and the lack of detail in his protection claims.
I have carefully considered the contents of [Dr A’s] report dated [in] November 2017, including the recitation in that report of the applicant’s protection claims. While I accept [Dr A’s] report has been written in good faith, the Tribunal is not bound by what a medical professional concludes as being the reason for an applicant’s symptoms.[8] In this case my concerns about the applicant’s credibility caused me to conclude that to the extent [Dr A’s] report recites the applicant’s account of the events underlying his refugee claims, it is to be given little weight.[9]
[8] MZWZB v MIMA [2006] FMCAA 4211
[9] MIAC v MZYHS & Anor [2011] FCA 53
The Tribunal’s particular findings are discussed below.
Country of nationality
It is not in dispute that the applicant is a Pakistani national. He entered Australia on an apparently genuine Pakistani passport. While that passport is no longer in his possession, the delegate notes that copies of his passport, national identity card and birth certificate are contained in the DIBP’s records and the applicant provided fingerprints and a biometric photograph consistent with his identity. The Tribunal finds that the applicant is a citizen of Pakistan and has assessed his claims against that country.
The applicant’s personal background
I accept the applicant originates from Karachi, Pakistan noting this is consistent with all the information provided to the DIBP in the applicant’s [temporary] visa application and protection visa application. I accept he completed his education in that city before travelling to Australia in June 2012 as the holder of a [temporary] visa.
I accept the applicant is of Shia Muslim religion and he grew up in a family comprising his parents, [and siblings]. I accept his evidence his parents remain living in Karachi. He gave evidence he does not know where his siblings are currently living, other than he believes they are not living in Pakistan.
The applicant’s claims for protection

The applicant initially set out his protection claims in the visa application as follows:
Why did you leave the country?
My father wants me to join a Shia freedom fighting group.
What do you think will happen to you if you return to that country?
I have to hold a gun.
Did you experience harm in that country?
I was in the 10^th Muharram rally and bomb blast happens. I was at the back and my [relative] he’s at the front only front people’s get injured some of them die at the spot my friends get injured luckily nothing happens to me but my [relative] lost his [part of body] and know his whole life become miserable.
Did you seek help within the country after the harm?
Because our government responsible for this they knew that we are in danger every day heaps of Shia people get killed but they don’t provide security after death of our peoples they came to news channel and said we are upset.
Did you move, or try to move, to another part of the country to seek safety?
Because all over the Pakistan Shia killings going on: in Karachi, Peshawar, Quetta, Parachinar, Punjab etc everywhere and government have few peoples who are anti-Shia and they are supporting terrorist.
Do you think you will be harmed or mistreated if you return to that country?
Shia freedom fighting group have a rule if they kill one Shia person we have to kill their two persons and if I don’t join this group my father not let me live in his house on our roads everyday political group open fire every day on each other and I don’t wanna die from an unknown bullet.
Do you think the authorities of that country can and will protect you if you go back?
Our government is hopeless our leaders are so much busy in their own fights they don’t have a time to look us they come to power rip the country and after they went to Europe and make castles and live their open accounts in savings bank.
Do you think you would be able to relocate within that country?
I can’t because I spend all my money to come Australia know I have nothing left in Pakistan. I spend all my savings to come here.
[sic]
At hearing the applicant told me he feared harm in Pakistan from both Sunni and Shia militant groups as well as his father and the political group MQM. It was submitted the applicant would face harm on return to Pakistan because of his Shia religion and his membership of the particular social group ‘persons who refuse to join Shia militant groups’.
Fear of harm from father and Shia militant groups
The applicant claims he will face serious harm from his father (whom he describes as an extreme Muslim) because the applicant refused to join a Shia militant group. He claims his father tried to force him to join this group between 2010 and 2012, beating him and locking him up when he refused to do so. He stated that Pakistan is an Islamic Republic and sons have to obey their fathers. He stated it was not possible his father would not know he had returned to Pakistan and when he found out his father would kill him.
The applicant claims he was able to flee Pakistan without his father’s knowledge because his mother asked her [family member] in Australia (the applicant’s [Relative A]) to help the applicant obtain a [temporary] visa to Australia and this was arranged without his father’s knowledge.
However for the following reasons, I do not accept the applicant’s claims that his father tried to force him to join a Shia militant group or that his father will seek to harm him if he returns to Pakistan.
Firstly, the applicant’s claims that his mother and [Relative A] secretly arranged his travel to Australia without his father’s knowledge are inconsistent with financial records submitted in support of his application for a [temporary] visa in May 2012 which indicate that his father provided part of the funds for his [temporary] visa. These records are copies of the applicant’s father’s salary advice for the months of January and February 2012 and bank records for a [bank account] in his father’s name.
At hearing the applicant initially denied his father’s bank records were provided in support of his [temporary] visa application. When they were shown to him, he stated he recalled stealing some records from his father’s drawer because his [Relative A] told him they were necessary, but he didn’t know what those documents were.
In response to the Tribunal’s letter under section 424A, the applicant stated that in order to get out of Pakistan, his mother sought the assistance of her [family member] in Australia and her [family member] in [Country 1] and that he relied on them to organise the visa application for him. He states they engaged the services of a company called [name] in Karachi who specialised in helping people get visas to other countries. He states his mother obtained his father’s records from his father, telling him she needed them to get a job, but did not tell his father they were for the applicant’s [temporary] visa application. He states he recalls going into his father’s room and collecting some documents, but is not sure whether they were the same documents, believing it to be certification of his father’s employment.
I have considered the applicant’s suggestion that I contact his mother by telephone in Pakistan to confirm this most recent account of how his father’s financial documents were obtained, however I have decided not to do so. While I accept his mother’s evidence will back up the applicant’s account of how she obtained these documents, I would give little weight to such evidence given the close relationship between the parties and my very serious concerns about the applicant’s credibility as set out in these reasons. I note the applicant’s mother gave oral evidence to the Tribunal at the first hearing about matters concerning the applicant’s claims and I have taken her evidence into account.
I do not accept any of the applicant’s various explanations of how his father’s financial documents were submitted in support of his [temporary] visa application without his father’s knowledge. Rather I consider his initial denial that those documents were submitted, followed by an explanation that he took documents from his father’s room without his father’s knowledge and his later explanation that his mother obtained them from his father on the pretext that she needed them to get a job are merely an attempt to explain away documentary evidence that is inconsistent with his protection claims.
For these reasons I do not accept the documents were submitted without the knowledge or consent of the applicant’s father, rather I consider the documents submitted in his [temporary] visa application indicate his father knew of and supported his travel to Australia.
Secondly, the applicant’s claims that his father threatened him, beat him and locked him up causing him to flee Pakistan in fear of his life in 2012 is inconsistent with his personal statement in his [temporary] visa application lodged [in] May 2012:
My family supported me always in each and every step of my life’s decision. They are encouraging me and supporting me for the accomplishment of my standard education from Australia . . . I have a charming family and I can’t imagine to spend my life without their blessings. After completion of my studies I should return to my beautiful country for the sake of brightest future as I have already described which will be ahead of me and support my great family. [sic]
In response to the Tribunal’s letter under section 424A, the applicant stated that it was an agent from [name] who compiled his statement of intention for his [temporary] visa and that it was devised in a way to give him the best possible chance of getting a [temporary] visa by casting his application in the best possible light. He states it was not individually signed by him and he was provided with the entire [temporary] visa application which he signed without truly knowing what it contained. He states the statement of intention was never read or explained to him and he signed the relevant documents as presented to him because he had to get out of Pakistan.
I do not accept the applicant’s explanation as to why his statements in his [temporary] visa application are contrary to his protection claims. As acknowledged by the applicant in his s.424A response, his [temporary] visa application was signed by him personally. While I accept he used the services of an agent to assist him in compiling that application, I do not accept he was not aware of or did not understand the contents of his personal statement. Rather I consider the applicant’s personal statement submitted in his [temporary] application indicates his family, including his father, supported his travel to Australia.
Thirdly, the applicant’s evidence about the Shia militant group his father tried to force him to join is vague and contradictory. When asked about this Shia militant group at the first Tribunal hearing, the applicant said the group didn’t have a name because they didn’t want to show themselves. At the second Tribunal hearing the applicant named three Shia militant groups, stating that every time there was an attack on Shias they would get together and counter-attack.
While the applicant claims to have been beaten up by members of the Shia militant group on many occasions, he did not make any mention of these events in his written claims accompanying his visa application. The delegate’s decision (a copy of which was provided to the Tribunal on review) records his claims at interview and makes no mention of his claims to have been beaten by his father or members of Shia militant groups. He has been vague in his evidence as to when or where these attacks took place to the Tribunal on review and I do not accept such events took place as claimed.
I have considered the oral evidence of the applicant’s mother given to the first Tribunal to the effect her husband wanted to take revenge against the targeting of Shias in Pakistan by forming a group comprising of the friends of the applicant and became angry when the applicant refused to join the group. However the evidence of the applicant’s mother is not enough to assuage my very serious concerns about the credibility of the applicant’s claims.
Fourthly, the applicant arrived in Australia [in] June 2012 but did not make an application for a protection visa until [date] August 2015, more than three years after his arrival in Australia. In response to the Tribunal’s letter under section 424A, the applicant stated that he was young and naïve when he arrived in Australia and he thought that his [Relative A] would arrange for him to stay in Australia. He states he did not become aware he could apply for a protection visa until he arrived in [named] Immigration Detention Centre in July 2015. Given my very grave concerns about the applicant’s credibility, I do not accept this explanation. Rather the applicant’s delay in making claims for protection causes me to further doubt the truthfulness of his evidence and to consider his claims lack credibility.
For the above reasons I reject the applicant’s claims that his father tried to force him to join a Shia militant group or that he beat him and locked him up when he refused to do so. I do not accept the applicant obtained a [temporary] visa and travelled to Australia without his father’s knowledge and support, nor do I accept there to be a real chance his father would seek to harm him if he returns to Pakistan, now or in the reasonably foreseeable future. I do not accept the applicant has had any contact with Shia militant groups, nor that he has ever sought to join or been pressured to join any such group. I do not accept the applicant has in the past been targeted, beaten up or otherwise harmed by any Shia militant group in Pakistan, nor that there is a real chance that he would come to their adverse attention if he returned to Karachi, now or in the reasonably foreseeable future.
It follows that I do not accept there to be a real chance that the applicant would face harm if returned to Pakistan for reasons of his membership of the particular social group, ‘persons who refuse to join Shia militant groups’.
Claims of past harm in Karachi
The applicant claims he will be targeted for harm or killed by Sunni militant groups if he returns to Karachi because of his Shia religion. At hearing on 11 December 2017 he gave evidence he was expelled from school in [number] grade, so his father told him not to study anymore and to go and stand guard outside [a] Bazaar with a gun. He stated that he conducted these guard duties between the end of 2009 and early 2011, stopping when his good friend [Mr B] was shot and killed by Wahabis at the beginning of 2011. He gave evidence he and [Mr B] were standing guard with others when some Wahabis came on a motorbike with an AK47 and opened fire, shooting [Mr B] [number] times in the chest and killing him. He stated that after that he told his father that he would not conduct guard duties at [the] Bazaar anymore causing his father to start regularly beating him, locking him up and directing his mother not to give him any food. He gave evidence his father would force him to perform these guard duties because he wanted him to die while undertaking jihad.
There are a number of other inconsistencies in the applicant’s account of his experiences as a Shia in Karachi. In his protection visa application, he does not suggest he performed guard duty for the Shia community. Rather he states he was present during a rally in Karachi on the tenth day of Muharram when a bomb exploded during which some people died, some friends were injured and his [relative] lost part of his [body].
Although the applicant mentioned visiting imambargahs at [the] Bazaar with his father at the first Tribunal hearing, he did not suggest he performed guard duties in the area. Nor did he suggest in his visa application or at the first Tribunal hearing that he was present when his good friend was shot in front of him by Wahabis on a motorbike.
When the inconsistencies in his evidence were discussed with him at the second Tribunal hearing, the applicant stated that in the two years since his first Tribunal hearing his English had improved a lot and he was able to talk about things he hadn’t mentioned before. I do not accept that explanation, noting he responded to the first Tribunal’s hearing invitation indicating that he did not require the services of an interpreter. In any event I do not accept he would not have mentioned his good friend being killed in front of him in his visa application, had that in fact occurred, given the seriousness of that event and the fact he described less serious events such as the wounding of his [relative].
For the reasons above, I have not accepted the applicant’s father tried to force him to join a Shia militant group or that he beat him and locked him up when he refused to do so. Given the inconsistencies in his evidence and my concerns about the credibility of his claims, I do not accept the applicant performed guard duties at [a] Bazaar nor that he was present when his good friend was shot in front of him by Wahabis on a motorbike.
I note the delegate’s decision records that the applicant stated at interview [in] September 2015 that he was not a devout follower of the Shia religion and does not attend mosque on a regular basis.
However I accept that as a Shia he may have attended imambargahs at [the] Bazaar with his father at times and as such he may been exposed to violence against Shia worshippers by Sunni militants operating in Karachi. In particular I accept the evidence of the applicant and his mother to the effect that he was present when his [relative] was injured in a bomb blast at a Muharram rally in or about 2011, losing part of his [body]. In making that assessment I note DFAT’s advice that Karachi has historically experienced high levels of violence, including sectarian violence, because of rival ethnic, sectarian, political, business and criminal interests.[10]
[10] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.33 – 3.41
However I do not accept the applicant’s claim at the Tribunal hearing on 11 December 2017 that he personally escaped six or seven bomb blasts targeting Shias including being present at the assassination of former Prime Minister Benazir Bhutto, considering that to be inconsistent with his statements about his experiences as a Shia in Karachi in his protection visa application and to the delegate.
Risk of future harm from militants in Karachi as a Shia
At hearing I discussed with the applicant the contents of DFAT’s 2017 Country Information Report: Pakistan. DFAT reports that Shias make up 15-20% of Pakistan’s population and Shias are spread throughout the country, with significant numbers living in urban centres throughout Pakistan, including Karachi. Karachi is the largest city in Pakistan and reportedly has a population of 20-24 million people. Although some Shias live in enclaves in Karachi and other urban centres, DFAT reports the Shia and Sunni communities are generally well integrated.[11]
[11] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.33
Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools and Shias continue to face a threat from anti-Shia militant groups including Lashkar-e Jhangvi, Sipah-e-Sahaba and various factions of the Pakistani Taliban. DFAT reports that about 820 Shias have been killed in sectarian violence throughout Pakistan since the beginning of 2013, out of an estimated population of 30 million Shias.[12]
[12] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.42 – 3.43
While sectarian violence affects people of all religions and sects in Pakistan, Shia have traditionally represented a higher proportion of the casualties, making up around 60% of the people killed in sectarian violence in Pakistan in 2015, despite comprising only 15-20% of the population. However there was a significant decrease in sectarian violence across Pakistan in 2016 and Shias made up a relatively small proportion of the total victims (less than 15%). The two biggest sectarian attacks in Pakistan during 2016 did not target Shias, but other religious minorities. DFAT reports an attack on a Shia religious gathering in Karachi on 30 October 2016, killing six people.[13]
[13] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.43
Overall DFAT assesses that most Shias in Pakistan face a low risk of sectarian violence, although the level of risk varies by geographic location and for members of specific groups. Most Pakistanis, including Shias, are able to practise their religion without significant interference by the state.
While Karachi has historically experienced high levels of violence, all violence, including sectarian violence, has fallen significantly in recent years because of the 2015 National Action Plan (NAP) and Operation Zarb-e-Azb to combat terrorist, separatist and criminal groups in Pakistan.[14] This has resulted in the highly visible presence of the federal paramilitary police, the Rangers. The number of fatalities from sectarian violence in Karachi fell from 216 deaths in 2014 to 38 deaths in 2016 and those figures include sectarian violence targeting non-Shia groups including Sunnis, Ahmadis and other groups as well as Shia.
[14] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.33
DFAT reports an attack on Shia religious gathering in Karachi which killed six people on 30 October 2016, however overall DFAT assesses that there is currently a low level of sectarian motivated violence in Karachi within a context of a moderate level of overall violence, particularly once the size of the city population is taken into account.[15]
[15] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.47-3.50
These changed conditions necessarily impact on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision. In assessing the applicant’s claims to fear harm in Pakistan, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward looking test.

When the above information was discussed with the applicant he responded by stating the operation had been going on for just a little time, two to three years, and the Rangers would eventually leave. He stated that bombings continued during Muharram and in any case no-one would save him from his father. He said he had lived through bombings targeting Shias in Pakistan.
I have considered the parts of the DFAT report to which I have been referred by the applicant’s representative. I acknowledge that the longer term effects of the NAP and Operation Zarb-e-Azb on the security situation in Karachi are not yet known. I accept that sectarian violence in Pakistan disproportionately affects religious minorities, including but not limited to Shias. I accept that sectarian violence continues to occur throughout Pakistan, including an attack in October 2016 in Karachi. I note the evidence of further attacks in other parts of Pakistan contained in the submissions of the applicant’s representative – an attack on a Sufi shrine in Sehwan, Sindh province on 16 February 2017.
However the DFAT information cited above indicating that sectarian violence has fallen significantly in Karachi since the commencement of NAP and Operation Zarb-e-Azb, together with the size of the Shia population in Karachi, causes me to consider that the chance that the applicant would be targeted or otherwise caught up in a sectarian attack in Karachi for reasons of his Shia religion is remote and merely speculative.
Discrimination against Shias in Pakistan
DFAT assesses that some anti-Shia discrimination does occur throughout Pakistan, but states it is typically low level. Shias are reportedly well-represented in the professional community in Pakistan and DFAT reports there is no credible evidence of systemic discrimination against Shias in obtaining admission to the public service, police, military or the private sector. DFAT assesses Shias don’t face significant levels of discrimination when seeking employment because of their religious affiliation, although there are perceptions of discrimination against Shias at higher levels of some organisations.
DFAT reports that Sunni and Shia students attend the same public and private institutions. They are well represented in Parliament, regularly contesting elections for mainstream political parties and there have been a number of high profile Shia leaders for political parties, including in the positions of president and prime minister.[16]
[16] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.38-3.41
I accept that as a Shia, the applicant may face a low level of discrimination if he returns to Karachi. However not all instances of discrimination will rise to the level necessary to constitute persecution. Under s.5J(4)(b), persecution must involve ‘serious harm’ to the person and s.5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. On the evidence before me, I do not accept there to be a real chance that the applicant will face serious harm for reasons of his Shia religion if he returns to Karachi, now or in the reasonably foreseeable future.
Fear of harm from political parties in Karachi
At hearing the applicant told the Tribunal he feared harm from political parties including MQM, the Awami National League and the People’s Party in Karachi, because their workers were everywhere on the street and they go shop to shop and get money.
When asked if he himself had had difficulties with any of these political parties in the past, he stated that in his area MQM forced people to listen to their speeches and gave people guns and mobile phones and ordered them to go to shops and take money and undertake target killings. When asked whether these things had happened to him, he stated he had no problems with MQM.
I have considered the evidence of the applicant’s mother at the first Tribunal hearing to the effect that the applicant was beaten by members of MQM in about 2010 or 2011, however as this is inconsistent with the evidence of the applicant at the hearing before me I give it little weight.
Given the applicant’s evidence he has not had problems with MQM or other political parties in the past while living in Karachi, I do not accept there to be a real chance the applicant will be targeted, forcibly recruited or otherwise harmed by political parties operating in Karachi, including MQM.
Criminal offences in Australia
As set out in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, [in] July 2015 the applicant was convicted of [number] instances of [criminal offences] in Australia and sentenced to a [details deleted]. The applicant gave evidence at the first Tribunal hearing that he did not fear harm in Pakistan on this basis. He did not suggest this had changed at the second Tribunal hearing. No submissions were made by the applicant’s representative that the applicant would face harm in Pakistan for reasons of his criminal convictions in Australia. On the evidence before me I do not accept the applicant has a subjective fear of harm on this basis. Nor do I accept there is a real chance the applicant would face harm from any person or group for reason of his criminal convictions in Australia if he returns to Pakistan, now or in the reasonably foreseeable future.
Conclusion on refugee criterion
For the reasons given above, the Tribunal does not accept there to be a real chance the applicant will face serious harm from his father, Shia militant groups or other Sunni militant extremists in Karachi, members of MQM or any other political party or any other person or group if he returns to Karachi, Pakistan, now or in the foreseeable future. For these reasons the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for the purposes of s.5(1).
For the reasons set out above, I have not accepted there to be a real chance that the applicant’s father will seek to harm him if he returns to Pakistan, now or in the reasonably foreseeable future. I have not accepted the applicant has in the past been targeted, beaten up or otherwise harmed by any Shia militant group in Pakistan, nor that there is a real chance that he would come to their adverse attention if he returned to Karachi, now or in the reasonably foreseeable future. I have not accepted there to be a real chance the applicant will face harm from Sunni militants for reasons of his Shia religion nor that he will be targeted, forcibly recruited or otherwise harmed by political parties operating in Karachi, including MQM or any other person or group if he returns to Pakistan, now or in the foreseeable future, for any reason. I have not accepted there to be a real chance the applicant will face harm in Pakistan from any person or group for reasons of his criminal convictions in Australia.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[17] For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from his father, Shia militant groups or other Sunni militant extremists in Karachi, members of MQM or any other political party or any other person or group if he returns to Karachi, Pakistan as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
[17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
While I have accepted that as a Shia the applicant may face a low level of discrimination if he returns to Karachi, I do not accept on the evidence before me that such low level discrimination will rise to the level of ‘significant harm’ as that term is defined in s.36(2A).
For these reasons, the Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSIONS
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Murphy
Member

ATTACHMENT A - 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 themself 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.
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 250

8 January 2018

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Immigration

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