1725081 (Refugee)

1725081 (Refugee) [2021] AATA 3645 (23 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1725081

COUNTRY OF REFERENCE: Pakistan
MEMBER:Paul Noonan
DATE:23 July 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2021 at 05:12pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Ithna-Ashari Shia – Shia volunteer security scout group – sectarian violence – fear of kidnapping – fear of killing – advocacy for Shia causes – return visits to Pakistan – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 31 August 2015. The delegate refused to grant the visa on the basis that they found the applicant was not a credible witness with respect to key aspects of his claims and that he had not been targeted for harm as claimed and that his claim to fear harm in Pakistan was not well-founded.
The applicant was born in Karachi, Sindh, Pakistan on [date]. He first travelled to Australia [in] May 2014 as the holder of a [Student] visa. He departed Australia [in] March 2015 for Pakistan. He returned to Australia [in] April 2015 as the holder of a [Student] visa. He departed Australia again [in] July 2015 and returned to Australia [in] August 2015 as the holder of a [Student] visa. After lodging his application for protection on 31 August 2015 he was interviewed by the delegate on 24 August 2017.
The applicant appeared before the Tribunal on 27 May 2021 to present evidence and arguments in support of his claims. The Tribunal also spoke to the applicant’s witness [Witness A] by telephone. The Tribunal was assisted during the hearing by an interpreter in the Urdu and English languages. The applicant provided the Tribunal with a copy of the delegate’s decision.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act, 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-5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s protection obligations because:
·He is a Shia who belonged to a Shia scout group and has a well-founded fear of harm or there is a real risk of significant harm to him because of this.
Written claims
In his written claim for protection the applicant declared that he and his family have been threatened with sectarian violence. He was beaten by a Sunni terrorist organisation for reason of him belonging to Ithna-Ashari (Shia Muslim). Due to this he and his family moved from Karachi to Islamabad. The same group that attacked him in Karachi then attempted to kidnap him in Islamabad.
Summary of substantive claims
The issue in this case is whether the applicant meets the refugee criteria or otherwise comes within Australia’s protection obligations because:
·He was a member of a Shia Imambargah volunteer security group (commonly known as a scout group) and that he has been and will be targeted by Sunni extremists because of this.
The applicant submitted further documents for the Tribunal’s consideration as listed:
·A decision of the Refugee Review Tribunal dated [in] December 2014 with respect to the protection claim of [Witness A], who is the applicant’s witness in this matter.
·A copy of the delegate’s protection visa decision, dated 25 September 2017.
The Tribunal hearing
The applicant confirmed his written claims for protection are an accurate reflection as to why he fears harm should he be required to return to Pakistan. He also confirmed that he is an Ithna-Ashari Shia Muslim. The applicant stated that his father is a retired [occupation] and is about [age] years old. All of his siblings and family currently reside in Islamabad. He previously studied [Field 1] in Pakistan. He came to Australia to study [Field 1]. His community helped him to come to Australia because of attacks upon him. Since being in Australia he has worked as [an occupation]. He studied for a year in Australia but went back to Pakistan in 2014 and was attacked. So when he came back he applied for protection.
The applicant confirmed he grew up in Karachi. He stated that he was a member of a small Shia scout group that provided security for Shia processions. It did not have a name. He just worked with a couple of others to provide security for congregations and processions. It was like a scout group. The same group is still providing services over there. The Tribunal pressed the applicant to name the scout group providing the services. The applicant stated that it did not need a name for the small-scale services provided. The Tribunal noted that country information lists a number of Shia scout groups operating in Karachi and stated that it may find it surprising that the applicant’s scout group does not have a name. The applicant stated they never had an intention to become popular, they just wanted to help out. He was [age] years old when they started this and they wanted to stay away form extremists so they did not have a name. With respect to his duties for the scout group the applicant stated that they would do security checks prior to processions and place individuals at strategic points. They would also collect data from houses who had relatives who had been killed with respect to their expenses and they would give that data to well-off people so they could help out. When asked if the scout group reported to a council the applicant stated that the head of the group is the brother of his witness and this person holds a license. The Tribunal asked the applicant what the overall controlling council is called that is in charge of scout groups in Karachi. The applicant submitted that there is no such council. The individual groups control themselves. The Tribunal asked if the applicant retains any membership documentation from this scout group. The applicant stated that they never had any such forms. These are only for those scout groups that are formally registered. His group was not registered. He did not get paid for the services he provided as part of the scout group. He was involved in the scout group from [age] years old until 2013.
With respect to other Shia activities the applicant stated that he would help set up a food spread after Ramadan. The Tribunal asked the applicant if he has undertaken any other public activities or advocacy for Shia causes since 2013. The applicant stated that he has participated in a few protests for Shia rights but there is no record of that or media reporting of that. His team was involved in the protests about Shia killings.
With respect to past harm as a member of this scout group the applicant stated that he was beaten up and had to spend a month in hospital and as a result he can’t remember much about that incident. When asked if he could recall when this happened the applicant responded that it happened in 2011. After that his friend was kidnapped in 2012 and he is not alive now. When asked if he had any hospital records from 2011 the applicant stated that there were documents but he lost them when the family moved to Islamabad.
The Tribunal asked the applicant for further detail with respect to his claimed harm in Karachi. He stated he had just finished his security shift at the place of worship and was travelling home when he was attacked. He was hit on his head and has forgotten what happened. He stated his witness will be able to provide further details. The Tribunal noted that the applicant gave evidence with respect to this incident to the delegate. He told the delegate this incident, where he was attacked, occurred during 2013 during Muharram while he was providing security for a procession. The Tribunal noted that he has now given contradictory evidence about when he was harmed and put this to the applicant under s.424AA of the Act. The applicant stated that he wished to respond now verbally. The applicant stated that because his head was hit he forgets details. What he can say is that they always provide security during Muharram. Secondly, he had told the Tribunal about the 2011 incident but he can also tell the Tribunal about the 2013 incident of harm now. This was during Muharram and nearby there was another Imambargah with a congregation that walked from there to his Imambargah where he was providing security. A group came and opened fire on them because they wanted to get into the Imambargah and they quickly closed the doors. The other Imambargah was also attacked and someone was killed. This was the 2013 incident that he told the delegate about. He blamed his memory loss.
The Tribunal put to the applicant that it is surprising despite these two claimed incidents of past attack he then decided to return to Pakistan on two further occasions. The applicant stated that at that time the threats were reduced and his family was in the capital and everything was fine and he had to have an engagement with his fiancée. The first time he went there was for 10 days. The second time he went he had planned to go longer but somehow the militants had traced him. He speculated that may have done so by somehow linking in with the national ID card. When this incident occurred in 2015 he was going to buy a religious book and was using a map. He was targeted on the way back on the street but managed to escape. He was accosted by men in a big [van]. He escaped because a police siren was sounding nearby causing them to flee. The men threatened him and said he should lose his religion or lose his life. The Tribunal asked the applicant what they meant by lose his religion: did they want him to convert? The applicant confirmed that, yes, it was about conversion. This was because everyone knew about him because of his role in the scout group and so he was prominent and targeted. The Tribunal put to the applicant that there is no country information that reflects that Sunni extremists have ever tried to convert Shia and this may reflect poorly on the plausibility of his claim. The applicant stated that he is confused as there are many different terrorist organisations and he does not know why they threatened or tried to convert him. The Tribunal put to the applicant that it may seem implausible that terrorist organisations would specifically seek him out but not harm him and only threatened to harm him if he did not convert from Shia Islam to Sunni Islam. The applicant did not address this concern of the Tribunal directly and just reiterated that he had received threats and his family had also received threats.
The Tribunal put the applicant that he had submitted a First Information Report (FIR) from the Pakistan police with respect to his reporting of this claimed 2015 incident. However, country information advises that document fraud is endemic in Pakistan and that it is simple to produce fraudulent FIRs. Further, there is credible evidence of police accepting bribes to verify FIRs and that overall the presentation of a FIR does not constitute evidence that the event in question actually occurred.[1] Further, that this may cause the Tribunal not to give any weight to the FIR. The Tribunal also noted the delegate’s expressed concern that the applicant had not submitted the FIR in the first instance with his application. The applicant stated that he obtained the FIR to evidence the assault and that two other ‘brothers’ or Shia activists were killed that time.
[1] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019, p.71
The Tribunal put to the applicant that country information reflects a history of a high level of generalised violence in Karachi.[2] The Tribunal put to the applicant that his evidence may appear to be reflective of generalised violence and asked him to clarify why he believed that he was specifically targeted. The applicant stated the reasons are quite clear. It was because they were at the forefront of activities in their community and they would help members of the community and provide security. Further, with respect to the claimed attack in 2013, it is clear that he was at the forefront of targeting. The Tribunal put to the applicant that he was only [age] when he joined the group, which may reflect that he was likely to be only involved in low level activities. Further, that he would likely not have a high profile. The applicant submitted that he was at the forefront and actively involved and that is why he was targeted.
[2] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019, p.37
The Tribunal put to the applicant that country information reflects that overall Shia face a low level of sectarian violence and that Shia account for some 20% of the population.[3] Further, that most attacks against Shia are carried out against high profile members of the community or religious ceremonies. Further, that most Shia were not readily distinguishable from Sunni.[4] As such the Tribunal put to the applicant that it may find it surprising that militants were able to track him down upon his return to another city and that they would be interested in doing so. The applicant submitted that they may have found him through the central IT system. He thinks that the militants may have constructed a target list and that he is on this list. He believes they may be targeting him because they are trying to scare others from providing the same services.
[3] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019, p.38
[4] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019, p.35-38
The Tribunal noted that the applicant stated that his father was also threatened by extremists and asked him if this was because of him. The applicant stated that, yes, it was. The Tribunal put to the applicant that his father and his whole family have now lived for many years in Islamabad unharmed and this may indicate that both they, his father, and himself, are now of no adverse interest to extremists. The applicant claimed that the threats are still there and his family can’t really get out of the house and participate in Shia congregations. They live in an area that is predominantly Shia and keep a low profile. The Tribunal put to the applicant that he claimed that extremists were able to locate him upon his immediate return to Islamabad and this may indicate that they would also be able to locate his father quite easily and the fact that they have not may indicate that that he is of no interest to them. The applicant then submitted that, while he is in Australia, his family has not received threats but if he were to return, they would.
The Tribunal put to the applicant that country information indicates that there is been a significant decrease in general sectarian violence since 2013. The Tribunal put to the applicant that the South Asian Terrorism Portal’s comprehensive report ‘Shias killed in Pakistan’[5] reflects that attacks on Shia are currently very low proportionate to the population, especially in Punjab and Islamabad, which may indicate there is not a real chance of harm for reason of him being Shia. Further, that this may indicate that the authorities are able and willing to take effective action to provide protection to Shia against terrorists and Sunni militants. The applicant stated that Shia protests are driven by a lack of security from authorities. If you read the headlines there are a lot of attacks against Shia still going on. Further, he suggested that reporting of attacks against Shia is suppressed. If the security situation was so good they would not have needed to make or form the scout group to protect Shia congregations.
[5] type="1">
The Tribunal asked the applicant why he did not apply for protection straightaway but delayed his application after returning to Australia. The applicant stated that he did not have a lot of information about his options; he just understood that he would continue with his student visa and eventually become settled here as a citizen. It was only after the second attack that he began to realise that things would not improve and start applying for protection. The Tribunal put to the applicant that the student visa did not provide him with a permanent right of residency Australia and that it may expect that if he held a genuine fear of harm that he would have explored his options for obtaining permanent residency or protection. The applicant stated that he had not made his mind up and was just focused on getting out of Pakistan and he thought things would just continue without him having to do anything.
The applicant confirmed that on his first return trip to Pakistan he had gone to Karachi. The second trip was to Islamabad. The Tribunal noted that despite returning to Karachi there was no attempt to harm the applicant. The applicant said that he kept a low profile and the community helped him.
The applicant stated that he is not receiving any form of medical treatment currently. He has seen the doctor once or twice for stress reasons in the past. Every Thursday he worships in [Suburb 1] at the mosque.
[Witness A], the applicant’s witness, stated that he had known the applicant since 2006 and was involved in security for Shia processions. His family owns the permits for providing this security and his brother currently owns this permit in Karachi. He confirmed that the applicant used to work with his brother. He submitted his protection decision to the Tribunal. He cannot return to Pakistan as his family has too many enemies.
The Tribunal noted that the applicant had sighted his witness as having knowledge about how he was located by extremists on his return to Islamabad. [Witness A] largely recounted his own personal history and some high-profile attacks upon Shia in the past, but did not provide any specifics as to that situation for the applicant. He recounted the situation of his own family’s permit system for providing security to Shia.
The Tribunal put to the applicant that [Witness A] had given evidence that his brother held permits for security and that he had accompanied [Witness A’s] brother on these security jobs. The Tribunal noted that this would appear to be different to his earlier evidence that he had decided to commence or start this security operation with two others. The applicant stated that, yes, he was working for [Witness A’s] brother. He was not paid, he just helped out.
The Tribunal’s considerations
The Tribunal considers that the delegate in their decision has confused some aspects of the applicant’s claim with respect to terminology. The delegate assessed the applicant’s claim on the basis of his involvement with the ‘Ithna-Ushri’ (the delegate’s spelling) or Ithna-Ashari community’s religious activities. The Tribunal notes that the Ithna-Ashari or Twelver school of thought is the predominant Shia sect in Pakistan.[6] It is clear from his evidence that the applicant’s claim actually relates to his claimed membership of a Scout group in Karachi that provided security for public Shia activities. However, the confusion is understandable as the applicant gave vague evidence to the delegate that he had joined Ithna-Ushri, and conflated this with his security group in vague and confusing evidence to the delegate, and did not make mention of the scout or security group in his written claim.
[6] Department of Foreign Affairs and Trade, Thematic Report, Shia in Pakistan, 15 January 2016, p.5
The Shaheed Foundation Pakistan, a Shia organisation, provided information on its website about the ‘Shia Rabta Council’, a body of scouts and volunteers that help provide security for Shia public events in Karachi.[7] According to the website:
The Scouts Rabta Council (SRC) is registered with Karachi Open District (K.O.D) and does concerted efforts to maintain a peaceful atmosphere by offering stringent security alongside the law-enforcing agencies. The facilitation of the mourners of Imam Hussain (a.s) during processions and gatherings is a major area where the SRC places special focus.
The SRC coordinates with the local administration and security apparatus to ascertain routes of the processions, entry & exit points, assists in issuance of vehicle passes & database management of vehicles entering the processions.[8]
[7] Shaheed Foundation Pakistan n.d., Scouts Rabta Council < Accessed 15 July 2021
[8] Shaheed Foundation Pakistan n.d., Scouts Rabta Council < Accessed 15 July 2021
In 2015 the Department of Foreign Affairs and Trade wrote:
Shia communities frequently make provisions for their own security, including fortification for Shia mosques and processions. This includes the establishment of self-protection ‘scout’ units and lines of security to search those attending Ashura processions. Shia communities frequently make provisions for their own security, including fortification for Shia mosques and processions. This includes the establishment of self-protection ‘scout’ units and lines of security to search those attending Ashura processions.[9]
[9] DFAT 2015, DFAT Thematic Report Shias in Pakistan April 2015, 14 April, p. 15
The Tribunal notes that there is documented country information that reflects an attack upon a Shia Imambargah in Karachi in 2013, which resulted in, amongst other victims, a scout member and a separate apparent targeted attack upon a scout member in Karachi in 2013.[10]
[10]European Organization of Pakistani Minorities 2013, News < European Organization of Pakistani Minorities 2013, News < Accessed 5 August 2015 <CISEC96CF12997>
Despite the applicant not previously clearly identifying his voluntary scout or security group role, the Tribunal accepts that this is the primary basis upon which the applicant makes his claim for protection rather than just his membership of Ithna-Asahri. In so finding the Tribunal accepts the difficulties faced by unrepresented refugee applicants that is often encountered clearly expressing their claims and history.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[11] 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, 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.
[11] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must also bear in mind that if it 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 (see MIMA v Rajalingam (1999) 93 FCR 220).
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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
In considering the applicant’s evidence the Tribunal is concerned about his vague evidence when asked to provide some meaningful detail about the scout group, such as its name, and also with respect to his contradictory evidence about the circumstances of his joining the scout group and attacks that he experienced.
Country information clearly reflects that scout groups have defined names and identities, with the Shia Rabta Council listing many scout group names and that these groups routinely provide security services to Shia events in Karachi.[12] When questioned about scout group arrangements in Karachi, the applicant became highly equivocal as to whether the group was in fact actually a scout group or aligned with the scout movement security or was just a loose unnamed group of people. The Tribunal finds it difficult to accept as reasonably plausible that a group, with no clear identity, was regularly contracted to provide important security at high profile Shia events and at Imambargah or, if the group was a scout group, that it had no identity as country information clearly reflects that individual scout groups are named.
[12] Accessed 15 July 2021
With respect to contradictory evidence about the group, the applicant variously claimed that he formed the group with two others and also that he simply joined the group, which was already established. The Tribunal also notes [Witness A’s] evidence, which was given with great confidence, that the group was and is run by his family (who are not related to the applicant) and that his brother holds a requisite licence to run the group as a security service for Shia events. The Tribunal also notes that the applicant was a teenager when he joined the scout group or group providing security. The Tribunal notes that the refugee decision with respect to [Witness A] makes reference to a claim that he and his brother undertook voluntary work for a local Shia [council].
On balance, the Tribunal accepts that the applicant undertook some voluntary work for a local Shia council in Karachi as a teenager which, as a component of its duties, collected data from local Shia houses and provided some organisation and security for Shia events. The Tribunal does not accept that the applicant formed or joined a formal Shia security group or scout group. The Tribunal finds that the applicant’s evidence does not reflect that he regularly also personally participated in Shia rights protests other than in fulfilment of his ad-hoc voluntary duties. The applicant’s evidence of past harm at Shia processions and events was entirely focused upon him undertaking such voluntary duties. The Tribunal does not accept that the applicant regularly participated in Shia rights protests as a protester or that he would seek to do so in the future.
The applicant also gave concerningly contradictory and somewhat vague evidence about past harm that he experienced while undertaking his voluntary work for the local Shia council. He variously claimed that he experienced an attack in 2013 while guarding a Shia procession, but then also claimed that this same attack was actually while he was guarding a Imambargah. He also gave contradictory evidence to the delegate and the Tribunal about when he had been physically harmed. He told the delegate he had been hit on the head in 2013 while guarding a procession but then told the Tribunal that he had been hit on the head in 2011 and in 2013 was guarding an Imambargah. He did not mention the 2011 incident to the delegate or in his written claims for protection. When these contradictions were put to the applicant he claimed that he was hit on the head and suffers from memory loss as a result, making it difficult to accurately recount past events. He could not identify his attackers. He did not retain records of his claimed hospital treatment.
Country information reflects that, in the period 2011 to 2013 high profile Shia gatherings were on occasion targeted for persecution by Sunni extremist groups in Karachi. The Tribunal accepts as reasonable that the applicant experienced or saw violence of this nature during the course of his voluntary duties as a Shia in providing services such as security. The applicant’s evidence was reasonably consistent that he experienced harm in 2013 and the Tribunal accepts that he witnessed and experienced an extremist attack on a Imambargah that year.
However, the Tribunal does not accept as reasonably plausible that the applicant was individually targeted for harm by Sunni extremists during this time. The Tribunal rejects the applicant’s claim that he formed a security or scout group for the reasons set out above. At the most the applicant was simply a young Shia man undertaking some low-level voluntary duties for large Shia gatherings. There is simply nothing in the applicant’s evidence to suggest that he had any duties, roles or responsibilities that would raise his profile to the extent that he would be individually identified by extremists and consequently targeted for harm. The Tribunal rejects the applicant’s claim that he was attacked for reason of his involvement in a scout or security group in 2011 while returning alone from work. This is because he only first introduced this claim at the hearing. While the Tribunal notes and has considered the applicant’s claims of memory loss, the Tribunal does not accept that it is reasonably plausible that he would fail to mention a specific targeted attack, even if he could not remember the year, such as this, in his written claim or subsequent interview with the delegate. His previous evidence simply reflects an attack while guarding a procession in 2013. The Tribunal concludes the harm that the applicant experienced was violence targeted against Shia in general in Karachi and was not as a result of him being personally identified. The Tribunal finds that the applicant does not have an adverse profile, or any profile at all, with Sunni extremists groups in Pakistan.
The Tribunal also does not accept the applicant’s claim that he was subsequently identified and subject to a targeted attack upon his return to Pakistan some years later, while visiting his family in Islamabad for reason of his past involvement in a Shia scout or security group. This is because the Tribunal has found that that the applicant has no profile with Sunni extremists and was not previously personally targeted for harm due to his volunteer role in a Shia scout group or security group. Further, the Tribunal finds that the applicant’s evidence, with respect to this claimed attack in 2015, is highly implausible and contradictory. The applicant claimed that extremists went to the trouble of locating him and then approaching him to warn him that he must convert or be harmed but were scared off before doing anything else by a police siren. As put to the applicant there is simply no country information that reflects Sunni extremists seek to convert Shia. The Tribunal also considers it highly implausible that extremists, that were motivated enough to track him down in this manner, would do so simply to warn him to convert and then immediately flee upon a siren sounding. Further, when questioned about how extremists located him, the applicant gave vague evidence that they may have tracked him through the national identity card system. When it was then put to the applicant that he had claimed that his father was also of adverse interest to extremists, but that he had resided safely in Islamabad for many years, which may indicate he was not located by the same methods, the applicant then contradicted his claim that his father was of adverse interest to extremists by stating that, while he resides in Australia, his family and father are safe. The Tribunal has also considered the purported FIR submitted by the applicant with respect to this incident. As discussed during the hearing country information reflects that such reports are easily and readily fraudulently produced and DFAT advises that the presentation of a FIR does not constitute evidence that the event in question actually occurred. The Tribunal also noted that the FIR was not produced in the prior interview with the delegate. The applicant simply stated that he had procured the FIR later to evidence the assault. Given the above overall concerns about the credibility of the applicant’s evidence with respect to this claimed assault and the country information about FIRs and the late production of the FIR, the Tribunal gives the FIR no weight.
On the basis of its findings the Tribunal finds that there is not a real chance that the applicant will be targeted for persecution by Sunni extremists for reason of his past voluntary work for a Shia scout or security group in Karachi up until 2013 should he return to Pakistan.
For completeness, the Tribunal has also considered the risk to the applicant as an Ithna-Ashari Shia Muslim should he return to Pakistan. As noted earlier in these reasons, Ithna-Ashari Shia Muslims represent the predominant branch of Shia in Pakistan. As put to the applicant, country information reflects that there has been a significant decrease in Sunni extremist attacks upon Shia in recent years. There have been very few documented attacks of this nature recently in the Punjab and Islamabad region, where the applicant would return to live with his family relative to the size of the population in recent years. No one in the applicant’s family has been harmed for reason of their Shia religion and the country information reflects that, even if they did keep a low profile and not attend large events, as claimed by the applicant, there is still a negligible risk to them of harm as Shia in Islamabad. Further, country information reflects that overall, Shia now face a low-level risk of sectarian violence and that the authorities are willing and able to provide protection to Shia at high profile events.[13] While the applicant submitted that the reporting of the problem is being supressed, and the scout group formations reflect the danger, the Tribunal gives significant weight to the independent country information cited when assessing this risk. As such, with respect to future risks considerations, should the applicant attend mosque and high-profile Shia events and processions in the future, in Islamabad, the Tribunal finds that there is no real chance he will face persecution in the reasonably foreseeable future. Overall, the Tribunal finds that there is not a real chance that the applicant will be targeted for persecution by extremists for reason of him being an Ithna-Ashari Shia Muslim should he return to Islamabad.
[13] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019, p.37
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of his being an Ithna-Ashari Shia Muslim or for reason of being a former member of a Shia scout group or security group in Karachi. Accordingly, his claimed fear of persecution is not well-founded.
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).
Complementary protection

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), that being whether, on the evidence, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[14]
[14] 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 Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances individually and cumulatively, and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm as set out in s.36(2A) from Sunni militants or anyone else due to him being an Ithna-Ashari Shia Muslim or a former member of a Shia scout group or security group in Karachi.
It follows, based on the above reasons and findings, that the Tribunal does not accept there is a real risk the applicant will suffer significant harm from any person for any reason or for any other reason evident on the claims or material as a necessary and foreseeable consequence of being removed from Australia to Pakistan. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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, he does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

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

[2021] AATA 3645

23 July 2021

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