1726365 (Refugee)

[2021] AATA 3075

1726365 (Refugee) [2021] AATA 3075 (8 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726365

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Brendan Darcy

DATE:8 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 June 2021 at 3:10pm

CATCHWORDS

REFUGEE – Protection visa – Pakistan – fear of being killed by Taliban extremists – particular social group – Pakistanis assisting religious minorities – membership with the NGO – anti-sectarian community leaders – support for the Christians – business owner and operator of a skill centre – remote and insubstantial chance of being seriously harmed by Sunni extremists – improved access to effective protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo& Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of the Islamic Republic of Pakistan (Pakistan), applied for the visa on 26 June 2015. The delegate refused to grant the visa on the basis of a number of adverse credibility findings and because the applicant did not have a well-founded fear of persecution for a reasons mentioned under s.5J(1)(a) or a real risk of significant harm based on the accepted circumstances of the applicant.  

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. 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.

7. 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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

10. In his written application to the Department, the applicant declared he was born in [year] in Faisalabad, Punjab, Pakistan.

11. The applicant provided the Department with a copy of his passport and other biometrics, and claimed to be a citizen of Pakistan by birth.[1]

    [1] [File number deleted], ff. 38, 96-114.

12. According to the applicant’s Form 866C, Application for a Protection Visa, his travel history before arriving in Australia is as follows:

    ·[Country 1], [date] to [date] August 2014, for tourism

    ·[Country 2], [date] April to [date] May 2014, for [an event]

    ·[Country 3], [July] to [August] 2014, for tourism

    ·[Country 4], [date] to [date] August 2014, for business

    ·[Country 5], [date] to [date] August 2014, for tourism

    ·[Country 3], [date] to [date] August 2014, for tourism

    ·[Country 6], [date] to [date] January 2015, to attend [an exhibition]

    ·[Country 7], [date] to [date] January 2015, for business

    ·[Country 2], [date] to [date] January 2015, for business

13. The applicant arrived in Australia [in] March 2015 as the holder of a Visitor (FA-600) visa, valid until [date] June 2015. On the same [date], the applicant submitted his Protection application and was granted an associated bridging visa. The applicant has not departed Australia since his arrival.

14. In his Form 866C, the applicant stated his ethnicity is Panjabi, religion is Sunni Islam and that he is married, having wedded in April 2009. The applicant stated he can speak, read and write Urdu and English. He declared his wife, mother, brother and two sisters as family members, residing in Faisalabad and citizens of Pakistan.

    Written claims for Protection

15. The applicant’s written claims for protection are first advanced on Form 866C and a statement attached to his application to the Department.[2] His claims centre around a fear of being killed by Taliban extremists due to his business and community activities in support of minorities, particularly Christians, for which extremists consider him a friend of Christians. His claims may be summarised as follows:

    [2] Ibid, ff. 18-20, 92-95

16. The applicant claims he is a married Pakistani national, whose wife is living in Faisalabad, and that he owns a business, [Business 1]. He states he is also an active social worker, working individually and also through the non-government organisation (NGO) [Organisation 1] (‘the Foundation’). He works tirelessly to help all poor and needy people irrespective of their religion, ethnicity and background; he has worked closely with the Christian church to help minority Christian groups.

17. The applicant claims he owns and operates a skills centre, [name deleted] (‘the Centre’). The Centre financially supports poor families and provides skills training to young people so they may find employment. The Centre trains participants in operating [machines] and the majority of participants are women of all religions and backgrounds.

18. He claims that the Taliban strongly opposes both the Centre, on the basis it encourages sexual liberties of women, and his assistance for minority groups such as Christians. He states he was threatened several times and ordered to close the Centre and stop helping Christians. The applicant states fundamentalist Taliban insurgents, who oppose women’s education and employment, are very active across Pakistan and strong in his hometown, Faisalabad; the police and security forces have no control over them and are unable to provide adequate security to Pakistanis.

19. The applicant then goes on to detail several incidents involving the Taliban. On [date] September 2013, he claims Taliban terrorists attacked his factory and damaged his property, harassing his employees and threatening them with death. He made a complaint to the [local] Police Station and submitted a First Information Report (FIR) on the same date.

20. The applicant claims that on [date] January 2014, four unknown men on motorbikes threatened him with murder unless he stopped the Centre. He submitted a complaint to the same police station as previously contacted and made a FIR, dated 10 January 2014.

21. The applicant states that due to religious sensitivities and tension in Pakistan and for his own safety, he supports Christians through the Foundation, which he has worked for and donated through for over three years. He often visits churches and Christian community activities through this work. He states that he offered financial support to two poor Christian sisters, who worked in his factory and were previously trained at the Centre. One sister was married on [date] May 2014; he financially supported the wedding and dowry and attended the wedding at church.

22. He claims that around July 2014, the Taliban became aware that he helped this sister through the Foundation, and then threatened him with death for his activities relating to Christians and the Foundation. He states there was a bomb blast in a Christian church in Lahor that killed 15 people and injured over 80 others, and that after the blast Christians burned alive two suspected Muslims as revenge. Following this incident, on [date] March 2015, he received a call from the Taliban and was told he was a high priority target for associating with Christians.

23. After arriving in Australia, on [date] March 2015 he claims he received a letter in the postbox of his residence in Pakistan, being a fatwa, dated [date] March 2015, from the Taliban that stated the Taliban had determined the applicant’s murder was due and justified. He states he asked his cousin, [name deleted], to take the fatwa to police. His cousin visited the [local] Police Station on [date] March 2015. The applicant said he was made aware that the police offer tore up and destroyed the fatwa, on the basis there would be religious riots if the police took action on the fatwa, and that the police officer refused to accept the complaint and advised his cousin there is nothing the police could do to save the applicant and that the applicant should try to save his own life. The applicant claims he is unable to return to Pakistan after receiving this information about the fatwa, and thus he decided to apply for Protection. He claims he will be murdered if he returns to Pakistan and that the police and security forces are powerless to protect him as they have no control over the Taliban. He states the Taliban is spread across Pakistan and he is not safe anywhere in the country.

24. The applicant submitted the following evidence with his application in support of his claims:

    ·Copies of his passport pages

    ·Pakistan Federal Board of Revenue Taxpayer Registration Certificate for applicant

    ·GST certificate in the name of his business, [Business 1]

    ·Faisalabad Chamber of Commerce & Industry Membership certificate and card

    ·Letter from Chamber of Commerce & Industry, dated [date] February 2015, recommending applicant for a visitor visa

    ·Business card of applicant for [Business 1]

    ·Business bank statement and letter from [Bank 1]

    ·Income Tax returns in personal and business names of the applicant

    ·Family Registration Certificate of applicant’s family

    ·First Information Reports (FIRs) dated [date] September 2013 and [date] January 2014

    ·Affidavit of having received training from [the] Centre by eight people

    ·Affidavit of having received financial support for wedding of daughter by her father

    ·Letter of recommendation from [Organisation 1] (Reg.), dated 16 June 2016

    ·Letter of recommendation from the Office of the Bishop of [Church 1] in Pakistan, dated 15 June 2015

    ·Declaration on stamp, purportedly copy of the fatwa issued by the Taliban in relation to the applicant, undated

    ·Internet search screenshots and links to videos of suspected burning alive of two people by Christians in Youhanabad, Lahore, Pakistan

    ·Articles from an Urdu newspaper and two English newspapers, ‘DAWN’ and ‘The Nation’, dated 16 March 2016 and highlighting reports of Taliban suicide bombings in Lahore churches.

25. The applicant attended a Protection Visa interview held with the Department on 4 August 2017, where he amended and added to his claims, as summarised in the delegate’s decision:

    ·He came to Australia to [attend an event] in 2015. After he arrived in Australia, the extremist dropped a letter at his residence which was a fatwa about killing him. He and his wife discussed living in other places. After three months, they decided that they cannot live anywhere in Pakistan because the extremist will find and kill him. Hence, he applied for the Protection visa on the last day of his Visitor visa validity;

    ·He fears returning to Pakistan because the last fatwa states that he is on top of the death list;

    ·Prior to coming to Australia, he lived in Faisalabad between 2008 and 2015, except for his short visits overseas for business purpose. He lived at [address deleted];

    ·He started his business in 2003 and the training centre opened in 2010. His business in Pakistan was very profitable. His annual turnover from the business was Rp. 30 million from the local sales and Rp. 35-40 million from international export. His business in Pakistan is no longer operating. He shut down the business on [date] April 2015 after applying for a protection visa. He did not have any partner or shareholder in his business. He received the entire profit from the business. There were 1000 other similar businesses in his area. They were not direct competitors of each other as each business sold their product according to the orders they received. He employed [number] permanent employees and [number] contractors for peak business periods. Approximately 5% of his total employees were non-Muslims. In his training centre, the majority of the non-Muslims were Christian women;

    ·Some of his employees were pre-skilled, others obtained their skills at his training centre. Once they had completed their training, they were free to decide where they wanted to work. Each year, 10-15 people out of approximately [number] trainees were employed in his business. Many of them learnt their skills at his training centre and continued working for him. Depending on where they lived, they either worked in his factory or another workplace close to their home. There were no other training centre in his area;

    ·The average salary for employees in [one] section was Rp. 15,000 – 20,000 per month and for [another] section was 20,000 per month. He often offered 2% on-time performance bonus to his employees;

    ·He did not offer direct financial help to his employees outside business. He provided financial help through an NGO called ‘[Organisation 1]’ to those who needed it. ‘[Organisation 1]’ is a Christian minority NGO. Initially he used to help people directly. He found that as a businessman, it was wasting his time. As a member of the NGO, it was easy for him to give the NGO money on a monthly basis who then helped needy people;

    ·The ‘[Organisation 1]’ helps needy Christians with the cost of wedding, medical and prison. He was helping Muslims through the obligatory ‘Zakat’ (alms). Since Zakat was not allowed for non-Muslims, he wanted to help the Christians by way of donations through the NGO. He donated in cash and there was paperwork with signatures and stamps. In 2009, one of his Christian friends committed suicide due to his financial problem. He was touched by this incident and decided to help the Christian minority. He believes the Christians in Pakistan deserve his donation;

    ·He helped needy Muslims through Zakat only during Ramadan (fasting month). This is the month when Zakat is due. However, he helps the needy Christians throughout the year by way of donations to the NGO. He does not help any needy Muslims during the other months (outside Ramadan) as he uses up his Zakat fund during Ramadan. Those needy Muslims will have to seek help elsewhere;

    ·There were 6 people working for the ‘[Organisation 1]’. They also hire additional staff from time to time. The NGO is registered under the names of its chairpersons of the NGO, [names deleted]. The finance secretary is [name deleted]. He does not know when the NGO was registered, he became an active donor member in July 2012;

    ·None of the officeholders of this NGO has ever been threatened or harmed because they are Christians;

    ·There is no media report on the threats he received from extremists. He received the threats over the phone after helping a Christian girl through the NGO with her marriage;

    ·He used to visit [Church 1] located [in] Faisalabad. The bishop [Dr A] used to ask him to resolve problems through his means. He knew [Dr A] since July 2012. The last time he met [Dr A] was in February 2015. He obtained the reference letter from [Dr A] through his cousin. His cousin personally met [Dr A] during the first two weeks of March 2015 while applicant was in Australia;

    ·He claims the extremists from Tehrik-e-Taliban (TTP) group issued him the Fatwa. There was a Church bombing on 15 March 2015. Two suspected Muslims were caught by the Christians and burnt alive. After this incident, the TTP issued the fatwa that he promotes this (Christian) community and because of his support they have had the courage to burn two fellow Muslims. The TTP placed him on top of the death list because of his membership with the NGO and his support for the Christians. They claimed him to be an agent of the Christians;

    ·The fatwa letter was dated 27 March 2015. It was handwritten in Urdu and dropped in his letter box. His cousin took the fatwa to the police. The police inspector tore the fatwa and refused to issue FIR in fear for his life and safety of his own family. The police did not issue FIR because the FIR would have alleged the TTP as the threatening entity. By issuing FIR, the police officer would have put his name and signature on the document implicating him against the TTP;

    ·When he needed the fatwa as evidence to support his Protection visa application, his cousin went to the same inspector and told him that the applicant needs a copy of the fatwa. The police inspector went to the advocate (solicitor) with his cousin and gave affidavit. The advocate certified the affidavit with the content given by the police inspector;

    ·The letter issued by the ‘[Organisation 1]’ and the ‘[Church 1]’ support his profile as a well-established and well-known friend of Christians. After he had attended the wedding of the Christian girl that he assisted financially, TTP came to know that he meets the Christians on occasions, and he was their well-wisher and supporter. He does not know of anyone else being threatened for the same reasons;

    ·The applicant reported the first two attacks and threats from TTP to the police for protection. He did not report to police after he was threatened for attending a Christian wedding because police did not take any action on the first two reports;

    ·He does not know or did not recognise any of the TTP people who threatened him;

    ·He cannot relocate elsewhere in Pakistan because when he buys or rents a house in that area, government or landlord will send his identity to the police station in his hometown for verification. There may be TTP sympathiser who will then find out that he has returned to Pakistan.

1. Following the interview, the applicant provided the following evidence and submissions to the Department:[3]

   ·Statutory declarations of the applicant, dated 23 August 2017 and 8 August 2017, responding to adverse information put to him during the interview held 4 August 2017

   ·An original and certified copy of death certificate of [Dr A], issued on [date] April 2016 and stating that [Dr A] died on [date] April 2016

   ·A document from the office of registrar, joint stock companies, Faisalabad indicating the registration of ‘[Organisation 1]’ since 24 December 2013.

   ·[Social media] screenshots provided as proof of the Foundation’s operation since 2013.

   ·A Google Maps screenshot showing the travel distance by car between Faisalabad and Youhanabad.

   [3] Ibid, ff. 116-136.

2. In a decision dated 4 October 2017, the Department’s delegate found that the applicant was not owed Australia’s protection obligations under either the refugee or complementary protection provisions and refused to grant the applicant a Protection visa.

3. On 27 October 2017, the applicant validly applied for review of the delegate’s refusal decision to the Tribunal, attaching a copy of the delegate’s decision record to the application.

4. On 12 February 2021, the applicant lodged medical documentation attesting to his health complications, in support of a request for the applicant’s hearing to be delayed to allow him to deal with his health. On 13 April 2021, the applicant resubmitted a number of documents already provided to the Department in his visa application.

5. The applicant appeared before the Tribunal on 13 April 2021 to give evidence and present arguments in relation to his application. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented at the hearing an in relation to the review by his registered migration [agent]. No witnesses participated in the hearing.

6. Before proceeding with its decision-making, the Tribunal provided the applicant until 27 April 2021 for post-hearing submissions.

7. On 26 April 2021, the applicant submitted post-hearing legal submissions and a number of documents in support of the applicant’s claim, discussed below, that Bishop [Dr A] passed away on [date] April 2016:

   ·Affidavit from Bishop [A]’s Son, [name deleted], Urdu and translation

   ·Affidavit from Bishop [A]’s Wife, [name deleted], Urdu and translation

   ·Identification documents of Bishop [A]’s wife and son

   ·Confirmation letter from [Church 1] in Pakistan confirming date of Bishop [A]’s death

   ·Newly issued copy of Bishop [A]’s death certificate from the Government of Punjab Pakistan.

8. The Tribunal has not received any further submissions up to the time of making this decision.

   Non-disclosure certificates

9. The Department file in connection with this application is not subject to any non-disclosure certificates.

   Country information: Pakistan

10. The Tribunal has considered the country information provided by the applicant to the Department and Tribunal. It has also had regard to the DFAT Country Information Report for Pakistan, which reports the following:

    SECURITY SITUATION […]

    2.69 The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent). […]

    Security Operations

    2.75 The Pakistan armed forces (see Military and Intelligence Services) have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups (see Police, Frontier Corps and Rangers and Military and Intelligence Services). […]

    2.78 In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab.

    ASSESSMENT OF CLAIMS AND FINDINGS

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of Reference

12. The applicant claims to be a national of the Islamic Republic of Pakistan (Pakistan). The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. Based on the available evidence, all of which is on file and with no evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Third country protection

13. AS there is nothing to suggest that the applicant has an existing right to enter and reside any third country for the purposes of s.36(3), the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3).

    Credibility Findings

14. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reasons claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’.  It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

15. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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.) In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).

16. In this decision, the Tribunal has made a small number of adverse credibility findings, otherwise the Tribunal found the applcaint’s claims to be credible supported by the overall oral, written and documentary evidence. With regards to the applicant’s personal circumstances, the Tribunal accepts the following:

    ·     The applicant was born in [year] in Gujranwala, Punjab Province, as claimed;

    ·     The applicant’s father passed away in 2000 and his mother resides in Gujranwala with the applicant’s only brother. The applicant also has two sisters, both married, one in Faisalabad and one in Gujranwala.

    ·     The applicant was married in 2009 and remains married at the time of making this decision. The applicant’s wife resides in Gujranwala with his brother and mother. The applicant does not have any children;

    ·     The applicant can speak, read and write in Urdu and English;

    ·     The applicant’s ethnicity is Panjabi; his cast is Jat caste; and this belongs to the Barelavi tradition or school within Sunni Islam;

    ·     The applicant graduated [a] course in 1998;

    ·     Since 1998, the applicant undertook work in the [specified] industry and started a [business] in 2003;

    ·     The applicant was the owner of a successful [business] named [Business 1] operating from Faisalabad; and

    ·     The applicant travelled internationally in 2014 to a number of countries, including [Country 2], [Country 3], [Country 1], [Country 5] and [Country 4] and to a number of countries [in] 2015, including [Country 7], and [Country 6].

    Past harm incidents by members of violent Sunni radicals

17. The applicant has consistently claimed since he lodged his protection visa application in 2015 that he had been subject to intimidation and threats of execution by members of the Pakistani Taleban (Tehreek- e-Taliban Pakistan or TTP) should the applicant resist the extremists’ call for the applicant to abandon his support for training and engaging religious minorities, especially Pakistani Christians.

18. The most recent DFAT report describes the TTP and its affiliates, despite official disruption efforts, as remaining the greatest security threat to Pakistan, with the highest overall number of attacks in 2018. TTP is the largest banned group in Pakistan and was responsible for 79 terrorist attacks across the country, resulting in 185 fatalities and 3336 injuries in 2018 (compared to 70, causing 360 fatalities and 360 injuries in 2017). The TTP­—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into several separate groups reflecting Operation Zarb-e-Azb, leadership tensions and the rise of ISIL. Nevertheless, in early 2017, a number of these splinter groups re-joined the TTP or pledged support for its leader. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned. TTP's level of cohesion waxes and wanes depending on the leadership. Even when TTP undergoes cyclical splintering, the disparate networks remain dangerous and willing to break any short-term agreements they may reach with the Pakistani state.

19. The applicant has claimed that he was targeted for harm because of the role of the applicant as a business owner and operator of a skill centre, called [the] Centre and held a membership or association with welfare foundation, known as [Organisation 1] for its charitable works among Chritian Pakistanis. \.

20. It is the applicant’s claim that he incorporated a skills centre, [the] Centre, to train disadvantaged Pakistanis to find employment in the [specified] sector and that the majority of the participants are women from different religious and cultural backgrounds. The applicant explained his involvement in training underprivileged religious minorities was triggered when a Christian with a number of children and who had lived in destitution passed away. After this, he wanted to assist Christian families in poverty out of sense of humanitarian charity. 

21. During the hearing, it was apparent that the skills centre and the foundation worked with the Punjabi government and provided vocational training to shape the poor and vulnerable youth through skills training. Available country information indicates programmes like Punjab Skills Development Fund or ‘Skills for Minorites’ aim to train minorities. An official document with the programme relevantly states: “Minorities that are non-muslims as defined in Article 260(3)(b) of the Constitution of Islamic Republic of Pakistan”.[4] The Tribunal accepts that the applicant was an owner and operator for a skills centre and a foundation whose principal mission was to train religious minorities in the Punjab Province and that he received subsidies for this work.

    [4] ‘Skills for Minorities’, Date of Issuance 2 March 2019, by the Punjab Skills Development Fund, Skills-for-Minorities-Instructions.pdf (psdf.org.pk)

22. It is noted that the delegate did not accept the [Organisation 1] operating in Faisalabad was registered until the middle of 2015 and therefore not legally established before that time. The applicant has challenged this, arguing that the entity was legally established in 2012 but there was no legal requirement to register with the relevant department. The Tribunal accepts the applicant’s claim about the [Organisation 1] as a legally established welfare entity operating since 2012 that was registered with the relevant authority in Pakistan.  This credibility finding is based not least on the submitted documentary evidence of registration of the foundation.

23. The Tribunal asked the applicant to elaborate on his activities with the foundation, which he described as a Christian non-government organisation. Along with providing a regular donation to the foundation, the applicant provided an example whereby he intervened in a dispute between Christian and Muslim youth over the use of a children’s playground or soccer ground and to stop the dispute from escalating into sectarian violence. The applicant claimed that we would be invited by Reverend [Dr A], a bishop in [Church 1] based in Faisalabad, as a mediator, when the occasion was called for, because the applicant had some good standing in community as a businessman and the operator of the skill centre. The applicant claimed have known [Dr A] since 2012. 

24. (There was some confusion between the authenticity of the [Dr A]’s death certificate claiming the date of death as [date] January 2016, while a media report stated the date of death as [date] April 2015.[5] This potentially undermined the applicant’s specific claim that he last met the bishop in February 2015 prior to the applicant’s departure. However, the weight of evidence, including from the Department’s enquiries, is that the date of death of [Dr A] was in April 2016 and the media report misreported the date. This strongly indicated the applicant has provided consistent information about when he last met the bishop.)

    [5] "Bishop [Dr A] passed away", [a newspaper], [date] August [2017] 

25. Overall, the Tribunal found the applicant’s account about his financial support for [Organisation 1] and his supportive activities with [Dr A], a prominent Christian leader in the community, including activities designed to deescalate sectarian tensions between Muslim and Christian Pakistanis to be credible.  The Tribunal accepts that the applicant did undertake such activities in relation to this foundation, as claimed, and there was a demand for local leaders in Faisalabad to divert small and trivial disputes from escalating into violence.

26. The applicant has outlined three (3) specific incidents of harm prior to his departure.

27. The applicant claimed that the first incident of harm he encountered was in September 2013, when TTP members damaged his factory and harassed his employees, including with threats to kill employees. The applicant claimed that a FIR dated 18 September 2013 was lodged with the police station [in] Faisalabad. The applicant has provided a copy of an FIR which was handwritten in Urdu. A translation of the FIR outlines an incident whereby six unknown extremists entered his factory, harassed employers at gun point  before running away after threatening and damaging the training centre. Later, according the FIR, the applicant received a threatening phone call to close down the training centre or otherwise he will be killed. There is no indication as to which organisation had made threats and damaged property.

28. The second incident of harm is claimed to have occurred in January 2014 when the applicant, while returning home, was approached by four unknown people on motorcycles who threatened to murder the applicant unless he stopped his training centre. The applicant claimed to have made a second FIR on 10 January 2014 at the police [station]. Like the first incident, the applicant submitted a copy of a handwritten FIR in Urdu with a translated version. It states that four unknown persons on two motorcycles stopped the applicant at gun point and ordered him to close the training centre while also threatening to kill him. It also states that since the Taliban object to his business, he was receiving continuous threats on the phone.

29. During the hearing, the Tribunal outlined its credibility misgivings about the FIRs and other documents claiming to be credible evidence of past harm due the prevalence of fraudulent documents emanating from Pakistan for migration purposes.

30. In this matter, however, the Tribunal is willing to provide the applicant the benefit of doubt that he credibly received the threats and faced damages at his training centre as claimed as outlined in the FIR dated 18 September 2013. The Tribunal has also provided the applicant with the benefit of the doubt that the applicant was threatened as outlined in the second FIR dated 10 January 2014. It also accepts that these two incidents were targeted against the applicant for the claimed reasons as a person who assists religious minorities through his training centre by Sunni extremists, possibly and most likely by the TTP, who oppose such commendable work.

31. It is noted that the applicant did not mention in the FIRs that he had been targeted due to his charitable engagements with the Foundation or his association with Christians in the community, including [Dr A].

32. The applicant’s third incident of threatened harm was not found to be credible by the Tribunal for the following reasons.

    The third incident of harm, it is claimed, occurred very soon after his arrival in Australia, to attend [an event], on [date] March 2015. Specifically, it was claimed that a threatening fatwa—a document with some religious authority—was issued against him by the TTP. The fatwa, it was claimed, was discovered by the applicant’s relative in the applicant’s letter box in at his home in Pakistan on [date] March 2015 – just one day before arriving in Australia. The fatwa determined that the applicant’s death was due and justified. The applicant then claimed that his cousin went to the police with the fatwa, but the police destroyed the fatwa and refused to lodge an FIR on the ground the complaint would trigger a religious riot. 

33. The applicant has provided a version of the fatwa to the Tribunal issued by a public notary to confirm the contents of the now destroyed fatwa. The applicant has relied on this incident as evidence that the police would not offer the applicant sufficient or effective protection against his persecutors in the TTP.

34. The applicant further claimed that the TTP’s hostility towards the applicant had been specifically triggered when they had heard in July 2014 the applicant helped a Christian woman to marry by financially supporting her wedding, including her dowry, and by attending the Christian wedding ceremony. The applicant provided an affidavit from the father of the bride to confirm the applicant’s support. The applicant then claimed that the TTP came to know about the applicant’s support of this wedding as well as his attendance at the Christian ceremony and threatened the applicant for his support and attendance.

35. The applicant relatedly claimed that on [date] March 2015 he received a phone call from the Taliban that he was a high priority target based on his associations with Christians and perceived liberal or Western values.

36. The applicant, whose reason for coming to Australia was to [attend an event], received the news while in Australia and then decided to apply for a protection visa as he feared being lethally targeted by the TTP should he return to his country of reference and nationality. The Tribunal notes that the applicant further claimed that he decided to apply for a protection visa based on heightened fears following the March 2015 terror attack on a Christian church in Youhanabad in Lahore, killing 15.

1. Of particular concern in relation to credibility for the Tribunal is the May 2015 fatwa issued by the TTP to the applicant the day before he arrived in Australia and the claim it was this fatwa that had been the triggering reason for his lodgement of a protection visa application. The Tribunal found the claim lacking in plausibility, not least in that the timing of the fatwa and the paucity of evidence of the fatwa on the basis that a member of the police force in Faisalabad destroyed the fatwa, refusing to support a First Information Report.

2. It was also of credibility concern to the Tribunal that the applicant travelled internationally to a number of destinations over 2014 and 2015 but returned to Pakistan. It was particularly concerning that the applicant had experienced threats against the TTP and/or unknown Sunni extremists in 2013 and 2014, including threats from July 2014 once the TTP was aware of him supporting the [Organisation 1], but did not take the opportunity to apply for refugee status when he visited [Country 7] or [Country 6] where there is comparable protection to Australia. Had the applicant had a deeply held and urgent as well as a genuine fear of being targeted by the TPP, as claimed, he would have taken advantage of seeking protection in a comparable country to Australia when he visited [those countries] in early 2015. In this regard, the Tribunal found it unconvincing that the applicant argued that while he received verbal threats to be killed, he did not find those threats urgent until there was a fatwa on paper delivered to his house – a fatwa which had apparently and unpersuasively been destroyed by a police member.

3. Based on these credibility concerns about the third incident of threatened harm, the Tribunal does not accept the applicant’s claim the TTP became aware of his role in financing a Christian wedding or attending a Christian wedding or supporting the Foundation in or around July 2015. The Tribunal does not accept the applicant received a threatening call from the TTP or any other Sunni extremist organisation on [date] March 2015, just before he departed for Australia. The Tribunal does not accept the applicant was issued a fatwa by the TTP or any other extremist Sunni outfit specifically targeting the applicant due to his work with the Foundation or his training centre. It does not accept anyone in authority destroyed the fatwa to avoid communal or sectarian unrest or tensions.

4. Having made these adverse credibility findings about the claimed third incident, the Tribunal does, however, accept the applicant did attend and financially support a Christian wedding through the [Organisation 1] in 2014, as claimed. 

5. The third incident, the Tribunal has assessed, had been proffered to embellish or embroider the applicant’s otherwise credible claims in order to augment his genuine fears arising from his status as a person of interest who has assisted underprivileged Christians and had been perceived by extremists as undermining the Sunni religious character of his local community or Pakistan more generally by supporting marginalised Christians. This contrived claims understandable as at the time of his departure in 2015, Pakistan had endured a wave of terrorist outrages in the five years of the decade beginning in 2010 and the seeming lack of capacity of the authorities to improve the security situation caused by militant Sunni terrorists.

   A well-founded fear of persecution: the applicant’s anti-sectarian activities

6. The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[6] The Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. Justice Dawson stated in Chan’s case:

   The phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.[7]

   [6]         Chan v MIEA (1989) 169 CLR 379 at 396.

   [7]         Chan v MIEA (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263.

7. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. Whether an applicant has a genuine fear is a question of fact. While the requirement of a genuine fear cannot be ignored, in many cases it will not be an issue.

8. Having made a number of adverse credibility findings about some of the applicant’s past incidents about being threatened by a 2015 fatwa, the Tribunal nevertheless does accept the applicant has faced past incidents of intimidation that arose from his association working with disadvantaged Pakistani Christians and that he was a person of interest to the TTP. The TTP is religiously and politically motivated to cause civil unrest between Sunni Muslims and Shia Muslims as well as non-Muslims in Pakistan.

9. For the reasons stated above, The Tribunal accordingly is satisfied that the applicant did hold a genuine personally held fear of persecution based on his membership of a particular social group, Pakistanis assisting religious minorities, and for the related reasons such as his membership with other Sunni Muslims assisting Christians and anti-sectarian community leaders at the time of his departure for Australia and the time of applying for protection. The Tribunal, however, is not satisfied that he did hold those otherwise genuine fears either deeply or urgently given he did not apply for protection while in [other countries] in early 2015.Based on the general credible thrust of the applicant’s claims, the Tribunal further accepts the applicant continued to hold these genuine—but not deep or urgent—personally or subjectively held fears of persecution right up to the time of making this decision.

10. During the hearing, the Tribunal discussed whether the applicant has a real chance of serious harm or a real risk of significant harm based on the TTP’s targeting of Christians and their houses of worship and his participation in government subsidised training programmes and other related elements of these claims.  The applicant noted that there had been a number of attacks on Christians by the TPP, in particular the 2016 attack in Lahore. The Tribunal discussed with the applicant that it was a splinter group of the TTP, Jammat-ur-Ahrar (JuA), who claimed responsibility for the attack. In this regard, the DFAT report outlines that a suicide bomber attacked a park in Lahore on Easter Sunday in 2016, killing 74 people—including many women and children. JuA claimed responsibility for the attack and said it deliberately targeted Christians.

11. About 1.6 per cent of the population or an estimated 3.3 million people identified as Christian in the 2017 Pakistani census. Most Christians live in in Punjab, the applicant’s home area, with sizeable populations in Sindh, Islamabad and Khyber Pakhtunkhwa. Most Christians are descendants of low-caste Hindus who converted during the British era. While a small number of Christians are relatively prosperous, Christians are the most economically vulnerable group in Pakistan and face significant social prejudice and class discrimination. DFAT assesses that Christians face a low level of official discrimination and a moderate level of societal discrimination. DFAT further assesses that Christians face a moderate risk of societal violence and sectarian violence. DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy, disproportionately affect religious minorities, including Christians, in Pakistan.

12. The applicant has undertaken commendable work in assisting religious minorities in the past, which is outlined above. However, his raising the number and intensity of attacks on Pakistani Christians has invited the Tribunal to consider whether an assessment of the chances of serious harm on him has been conflated with those chances of serious harm faced by the Christian community. Christians tend to live in concentrated areas or enclaves, which mitigates their risk of societal discrimination but increases their vulnerability to violence. As the country information indicates, communal violence often follows accusations of blasphemy. The applicant also provided compelling testimony that trivial disputes sometimes escalate or intensify into sectarian unrest and that he played a role in de-escalating that potential violence. While the available country information assesses Christians face a moderate risk of societal discrimination and sectarian violence, the Tribunal does not accept the applicant will return to Pakistan and face the same level of threat as he is not a Christian Pakistani who will be living on a daily basis where volatile communal violence has a real chance of intensifying or worsening into serious harm.

13. The Tribunal accepts the applicant has a chance of serious harm from targeted attacks while visiting or engaging Christian individuals and communities arising from his past activities in assisting religious minorities and because such situations are volatile in themselves. It is accepted that the applicant has a chance of being targeting by Sunni extremists because the Tribunal accepts has some standing in the community who has assisted Christians and other religious minorities in training and anti-sectarian work and he has been subjected to intimidation in the past. The applicant’s chances of serious harm or the risk of significant harm in this matter is, nonetheless, assessed in the overall security situation within Pakistan and in his home province of Punjab, specifically.

14. As discussed in the hearing, the tempo and intensity of a terror attacks in Pakistan have reduced. When the Pakistani armed forces launched Operation Zarb-e-Axb in June 2014, which was followed by 2017 Operati Radd-ul-Fassad, the overall attacks within Pakistan steadily declined. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.

15. According the DFAT report, overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

16. According to the DFAT report, up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).

17. The DFAT report goes on to state that security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi’a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). Three of the faith-based violent incidents targeted the Ahmadi community. Sectarian violence also reduced by 40 per cent (12 incidents reported) in 2018 compared to 2017.

18. The Tribunal has considered more recent reporting and assessments regarding the extremist groups, including the TTP, in Pakistan’s Punjab Province, which is the applicant’s home province and where his family continues to reside.

19. Between 2010 and 2016 Pakistan’s Punjab Province experienced several hundred casualties a year from extremist violence. Sectarian attacks accounted for a large portion of this.[8] The targets of such violence tended to be Ahmadi Muslims and Shia Muslims and Christians, and also the Sufi shrines which are places of worship for both Shia Muslim and Sunni Barelvi Muslim devotees. Most of the sectarian attacks which took place during this period and up to 2018 were claimed by and/or attributed to Sunni Deobandi extremist groups like Lashkar-e Jhangvi (LeJ) and the Pakistani Taliban (Tehreek-e-Taliban Pakistan or TTP) and Jamaatul Ahrar (a TTP splinter group), and in some cases militants claiming allegiance to the Islamic State movement (Daesh). To a lesser extent the sectarian violence of the years prior to 2018 sometimes also saw the Shia militant group Sipah-e-Mohammad (SMP) attacking members of sectarian Sunni groups.

    [8] 1 PIPS, "Pakistan Security Report 2012", 1 January 2013, CIS29231, pp.21-22; PIPS, "Pakistan

20. In recent years, and in particular since 2018, extremist violence in Punjab Province has decreased considerably.[9] Since 2018 Punjab Province (with a population of 110 million persons) has seen less than 100 casualties a year from extremist violence, and there have not been any mass casualty sectarian attacks since the 2016 Easter Sunday bombing in Lahore.

    [9]

21. To the extent that extremist violence has otherwise continued to occur in the Punjab Province since 2018, it has overwhelmingly targeted Pakistan’s security forces. These post-2018 attacks have typically been claimed by and/or attributed to either the TTP or Hizbul Ahrar (a TTP splinter group). There is some variation in the available reporting as to the exact number of casualties in any given year but, broadly speaking, since 2018 attacks by extremist groups in Punjab Province have resulted in some 20 deaths and some 40 injured each year, with most of these casualties being civilians who were bystanders in the vicinity of an attack that targeted security personnel. Mass casualty attacks that deliberately target civilians have become rare. To the extent that extremist groups have deliberately targeted civilians in the Punjab Province (and excepting sectarian attacks against the Ahmadi community) such attacks have generally been targeted attacks upon judges and politicians and employees of high-profile government agencies like the Pakistan Atomic Energy Commission (PAEC). As with attacks upon security forces, there have been only two or three attacks of this kind each year. Since 2018 such extremist attacks as have occurred in Punjab Province have typically occurred either in highly populated cities like Lahore and Rawalpindi,[10] or in southern districts like Rajanpur and Rahim Yar Khan.

    [10] Pakistan Bureau of Statistics, "Province Wise Provisional Results of Census – 2017", 11 November

22. The ongoing reduction in extremist violence has been largely credited to Pakistan’s National Action Plan (NAP) and to the effectiveness of the Punjab Police’s Counter-Terrorism Department (CTD), and the manner in which successive governments in Punjab Province have invested heavily in policing terrorism.[11]  Recent years have seen constant reports of security operations against alleged members of extremist groups in Punjab Province, and regular reports of the conviction and sentencing of such persons. The NAP has encompassed the deployment of a 5,000-strong counter terrorism force across the country, and special courts for the speedy trial of “terrorist suspects”.[12] The NAP has been praised for decreasing violence but criticised for failing to find a solution to the root causes of extremist violence such that it can be eliminated altogether.[13] The Punjab CTD has likewise been both praised and criticised for its aggressive approach; with some commentators expressing the concern that CTD’s aggressive use of lethal force (resulting in so called “encounter killings”) will perpetuate a cycle of grievance that will supply extremist groups with future recruits.[14]

    [11] PICSS, "2019 Annual Security Assessment Report", 9 January 2020, 20200122140652, pp.48-49; CRSS, "CRSS Annual Security Report Special Edition 2013-2018", 1 March 2019, 20190405163832, pp.62-64

    [12] EASO, "Pakistan Security Situation", 30 October 2019, 20191031160110; PIPS, "Pakistan Security Report 2019", 5 January 2020, 20200114102703.

    [13] CRSS, "CRSS Annual Security Report Special Edition 2013-2018", 1 March 2019, 20190405163832,

    [14] PICSS, "2019 Annual Security Assessment Report", 9 January 2020, 20200122140652, p.48

23. It is the Tribunal’s assessment of this country information about the security situation in the applicant’s home province of Punjab and in Pakistan, more generally, that the applicant has only a remote and insubstantial chance of being seriously harmed by Sunni extremists based on the dispositive claims advanced in this matter. That harm includes ongoing intimidation with violent threats, abduction, torture and even being killed.  The Tribunal accepts that the applicant has a more than usual profile among the TTP, who have credibly warned the applicant to desist with his good deeds among Pakistan’s religious minorities but finds that this is not a high profile.

24. Should the applicant return to his family in Punjab, he will face some challenges and will hold a fear of being target by Sunni extremists. He can also return to his business and continue or restart a training centre for religious minorities, which is backed by state subsidies, and resume the role in deescalating sectarian tensions and unrest between Muslims and Christians and other religious minorities.  It is also open to him to seek out new opportunities in business and employment.

25. However, given the passage of time and the considerable improvement in the security situation in Punjab,  the applicant will have considerably improved access to effective protection measures against persecution by a relevant state authority and whereby this accessible protection is durable and consists of an appropriate criminal law, an effective police force and an impartial judicial system, as required by section 5LA. The Tribunal can find no reason the authorities will deny him access to protection measures based on the essential and significant reasons relating to his membership of other Sunni Muslims assisting Christians and anti-sectarian community leaders or any other related reasons mentioned under s.5J(1)(a), should the applicant return to Pakistan into the foreseeable future.

26. Furthermore, the Tribunal also does not foresee a real chance of serious harm or a real risk of significant harm arising from any targeted acts of terror by Sunni extremists for the reasons clamed if the applicant were to return to Punjab in the reasonably foreseeable future. That is because it is the Tribunal’s analysis that the chances of serious harm from such attacks, while targeting a range of peoples based on their religion or political opposition to Sunni extremists or their membership of the police and rangers, the armed and intelligence forces or the kind of anti-sectarian roles the applicant has played in the past, are remote and insubstantial and do not amount to a real chance of serious harm for a reason mention under s.5J(1)(a). As the country information outlines above, there have been several years of consolidation against Sunni extremists in Punjab which reasonably leads the Tribunal to consider the progress is sustainable without any significant deterioration whereby the applicant will face a real chance of serious harm for the reasons claimed into the foreseeable future.

1. Therefore, the applicant does not a have a well-founded fear of persecution, objectively understood, relating to his membership of other Sunni Muslims assisting Christians and anti-sectarian community leaders or any other related reasons mentioned under s.5J(1)(a), if the applicant were to return to his country of nationality and reference, as required by sections 5H and 36(2)(a) of the Act.

2. With regards to the Act’s complementary protection provisions, it is noted that the threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[15]

   Given the Tribunal has made a ‘real chance’ finding about the applicant’s otherwise genuine personally held fears of persecution based on his membership of Sunni Muslims assisting Christians and anti-sectarian community leaders or any other related reasons mentioned under s.5J(1)(a), the Tribunal accordingly finds that the applicant, as a necessary and foreseeable consequence of being returned to Pakistan, will face only a remote and insubstantial risk—and not one that amounts to a real risk, of significant harm, arising from the same considerations outlined above.

   [15] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). The Court rejected the submission that ‘real risk’ was a higher threshold which required that the possibility of harm be more likely than not: per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s 36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.

3. In this regard, the applicant does not have meet the requirements of s.36(2)(aa), if returned to the applicant’s country of reference.

   Residual claims

   The applicant’s accepted faith tradition

4. The Tribunal notes and accepts that the applicant belongs to the Barelavi wing of Sunni Islam.

5. According the most recent DFAT report, around 60 per cent of the Sunnis adhere to the Barelvi school, with a significant minority (around 35 per cent) following the Deobandi school. While both groups follow the same basic principles of Islamic theology (the Hanafi school), Deobandis have a more orthodox and conservative interpretation. A smaller number of Sunnis (around five per cent) follow the Ahl-e-Hadith (Salafi) school. According to the International Crisis Group, most Sunni militant groups in Pakistan claim to follow a form of Deobandi or Salafi Islam, including TTP, Jaish-e Mohammad and LeJ.

6. At no stage did the applicant claim to have been a target by the TTP or anyone else based on the applicant’s actual religious membership as a Sunni Muslim belonging to the Barelavi school, although there is considerable rivalry between Deobandi and the more numerous Barelavi, especially in Punjab. While the Tribunal accepts there is a remote chance of serious harm or a remote risk of significant harm to the applicant based on his Barelavi faith by Sunni extremists, it does not accept the applicant faces a real chance of serious harm or a real risk of serious harm based on his accepted and actual faith tradition, if he returns to his home province of Punjab into the reasonably foreseeable future.

7. In this regard, the applicant does not satisfy either sections 36(2)(a) or 36(2)(aa).

   The applicant’s imputed religious beliefs

8. It is noted that the applicant has attended Christian services and ceremonies and held associations with Christian Pakistanis, including a prominent Christian leader, the late [Dr A], a bishop in [Church 1], in the past. It is likely that if the applicant were to return to Pakistan, he would resume some of these associations. However, the applicant is not claiming to be a Christian or that he has ceased to be a Sunni Muslim.  Out of a sense of completeness, the Tribunal makes findings that the applicant does not have a real chance of serious harm based on the essential and significant reason as an imputed apostate from Islam to another religion, or being imputed as a Pakistani Christian, either by radical Sunni Muslim terrorists, the authorities or anyone else in Pakistan, should he return to his home province of Punjab or Pakistan more generally in the reasonably foreseeable future.  Based on the same considerations, there are no substantial reasons for the Tribunal to believe that the applicant will suffer, as a necessary and foreseeable consequence of being removed from Australia to his home province, a real risk of significant harm as an imputed apostate from Islam or an imputed Christian. 

9. In summary, having considered the applicant’s claims about being targeted by the TTP and any other violent Sunni terrorist outfit operating within Pakistan, both individually and cumulatively, the Tribunal finds that the applicant has a chance of serious harm, but not one that amounts to a real chance, based his religion or any membership of particular social group arising from his past association with ameliorative training and community outreach to Christian Pakistanis or being imputed as an apostate or a Christian, should he return to his home province or Pakistan more generally into the reasonably foreseeable future. In this regard, the applicant does not have a well-founded fear of persecution in returning to Pakistan.

10. With regard to the Act’s complementary protection provisions, the Tribunal notes that the ‘real risk’ test is the same as the ‘real chance’ standard. Accordingly there is no substantial reasons for the Tribunal to believe that the applicant will suffer, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, a risk of significant harm that amounts to a real risk based on the same considerations arising from his past association with Christian Pakistanis or for any related reason such as religion.

    Health claims and COVID-19

11. On 3 March 2021, the applicant’s representative submitted 22 pages of medical documentation to illustrate that the applicant has been diagnosed and treated from diabetes and cardiological complaints, including a heart blockage. At the hearing, the applicant mentioned having surgery for nephropathic complaints in 2017, although there was no medical evidence submitted to support this.

12. At times during the scheduled hearing, the applicant was tearful and emotional. Given the Tribunal accepts the applicant departed Pakistan holding a genuine personally held fear of persecution and he has been separated from his family for a considerable amount of time, there is no doubt that there has been a negative impact on his mental health. It is noted, however, the applicant has not provided any medical or psychological reports about specific mental health conditions.

100.   However, the applicant has not advanced any claim that in returning to his home area of Pakistan or Pakistan more generally, the applicant will not be denied any medical, including mental health, support or treatments based on any of the claimed reasons he faces a well-founded fear of persecution for a reason mentioned s.5J(1)(a) or any other reason in a systemic and discriminatory manner. Therefore, with regard to the applicant’s medical ailments, the applicant will not face a real chance of serious harm for any of the five reasons outlined under s.5(J)(1(a), in returning to Pakistan, even under circumstances where his health conditions deteriorate in the foreseeable future, as required by s.36(2)(a). 

101.   With regard to the Act’s complementary protection provisions, the Tribunal accepts that the applicant will face a real risk of harm whereby his health, both physically and mentally, will deteriorate, as a necessary and foreseeably consequence in retuning to Pakistan. However, the harm does not amount to significant. The Tribunal has had regard to the departmental guidelines regarding the arbitrary deprivation of life and that being removed due to a pre-existing medical condition may reduce the applicant’s life expectancy and may amount to significant harm.[16]  The guidelines go on to say that elements of unlawfulness, injustice as well as capriciousness, lack of predictability, unreasonableness and a lack of proportionality and intention are relevant indications of arbitrary deprivation of life. It also states that death due to natural causes does not amount to the deprivation of life as arbitrary. The Tribunal finds there is no element of capriciousness, lack of predictability, unreasonableness or a lack of proportionality and intention arising from Pakistan’s health system towards the applicant. Furthermore, there is no suggestion that the access and affordability of health services in his home country is to be withdrawn or restricted with the intention of causing harm, leading to the arbitrary deprivation of the applicant’ life. Based on these findings with the accepted health and personal circumstances, cumulatively considered test, the Tribunal does not accept the applicant will be arbitrarily deprived of his life as required by subsection 36(2A)(a).

[16] 21 May 2015,  PAM3 Complementary Protection Guidelines: 12.1 Medical claims :If a non-citizen’s life expectancy would be threatened by being removed due to a pre-existing medical condition (both terminal and non-terminal in nature), this would not amount to an arbitrary deprivation of life. Deprivation of life due to natural causes is not arbitrary.

102.   The definitions of both ‘torture’ and ‘cruel or inhuman treatment or punishment’ refer to ‘severe pain and suffering’, although ‘pain or suffering’ can meet the definition of ‘cruel or inhuman treatment or punishment’ in some circumstances. By contrast, ‘degrading treatment or punishment’ is concerned with humiliation rather than pain and suffering as such.  Treatment may also be said to be degrading if it grossly humiliates a person in front of others or drives the person to act against their will or conscience. The definitions ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ refer to ‘an act or omission’. This means that only an action or a failure to act would fall within the definition, which may be distinguished from a consequence of an act or an omission.  The requirement for ‘an act or omission’ is linked to the fact that torture, cruel or inhuman treatment or punishment and degrading treatment or punishment all require an element of intention. 

103.   The Tribunal finds that there is no intention on the part of the Pakistan government or society to generate significant harm towards the applicant specifically, leading to cruel or inhuman or degrading treatment or punishment.  The Tribunal does not accept that the legal requirement of ‘an act or omission’ that will cause severe pain and suffering which require an element of intention towards the applicant is satisfied in his accepted health circumstances.  Therefore the Tribunal does not accept the applicant has a real risk of significant harm of ’degrading treatment or punishment’ or ‘cruel or inhuman treatment or punishment’ arising from a lack of provision of health services in Pakistan as required by subsections 36(2A)(d) and (e).   

104.   Accordingly, the Tribunal is not satisfied there are any substantial reasons for it to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, faces a real risk of significant harm as defined by any of the subsections of 36(2A) arising these specific circumstances regarding the applicant’s health

It is acknowledged that the international public health crisis arising from the current COVID‑19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. It is noted that this decision is not a decision on removal. However, the Tribunal is mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, the Tribunal finds that whatever measures may be applicable to the population in Punjab Province—and Pakistan generally, in response to the present COVID-19 pandemic do not, in the absence of additional considerations, amount to facing a real chance of serious harm based on one of the reasons mentioned under s.5J(1)(a) for the purposes of s.36(2)(a). Neither do the same considerations amount an intentional act or omission for the purposes of complementary protection provisions. Accordingly, circumstances in Pakistan arising due to the COVID-19 pandemic do not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.

105.   Having taken the applicant’s accepted health circumstances into account as well as the impact of the COVID-19 pandemic on the removal of the applicant, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a nexus reason mentioned under s.5J(1)(a), if he returns to Pakistan.

106.   Neither does the Tribunal have substantial grounds for it to believe the applicant, as a necessary and foreseeable consequence of his removal from Australia to Pakistan, will suffer a real risk of any significant harm listed under s.36(2A) based on the same health considerations. In this regard, the applicant does not satisfy s.36(2)(aa).

Cumulative findings

107.   The applicant has not advanced any claims that he would be targeted or face a real chance of serious harm based on his political opinion, imputed or otherwise, his nationality, his ethnicity or any another membership of particular social group not addressed in the abovementioned findings. Therefore, no other residual claims are to be considered in this decision.

108.   Having considered the applicant’s claims both individually and cumulatively, the Tribunal finds that there is not a real chance that, if returned to Pakistan, the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons, if he returned to Pakistan.  

109.   The applicant accordingly does not satisfy the criterion set out in s.36(2)(a).

110.   Having considered the applicant's claims individually and cumulatively, for the reasons given above, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Islamic Republic of Pakistan, there is a real risk the applicant will suffer significant harm, by way of being arbitrary deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment.

111.   Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

Conclusion

112.   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).

113.   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).

114.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

115.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Brendan Darcy
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.

…

Security Report 2013", 1 January 2014, CIS27132, pp.21-22; PIPS, "Pakistan Security Report 2014",
1 January 2015, CISEC96CF1254, pp.22-23; PIPS, "Pakistan Security Report 2015", 5 January 2016,
CIS38A80122591, pp.24-26; PIPS, "Pakistan Security Report 2016", 1 January 2017, CISEDB50AD63, pp.42-44; PICSS, "Annual Security Assessment Report 2014", January 2015, p.30,
CISPICSS2015; PICSS, "2015 Annual Security Assessment Report", 21 February 2016,
CIS38A8012978, pp.32-35; PICSS, "Annual Security Assessment Report 2016", January 2017, pp.57-58, CISPICSS2017.
 PIPS, "Pakistan Security Report 2017", January 2018, CIS7B83941282, pp.56-58; PIPS, "Pakistan
Security Report 2018", 6 January 2019, 20190121110758, p.49; PIPS, "Pakistan Security Report
2019", 5 January 2020, 20200114102703, pp.50-52; PICCS, "Pakistan Security Assessment 2017", 1
February 2018, CIS7B83941229, pp.35-38; PICSS, "Pakistan's Annual Security Assessment 2018",
19 April 2019, 20190617153632, pp.43-44; PICSS, "2019 Annual Security Assessment Report", 9
January 2020, 20200122140652, pp.48-49

2017, CISEDB50AD8716.