1804865 (Refugee)

1804865 (Refugee) [2024] AATA 2993 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sarah Shnider
CASE NUMBER:  1804865
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Paul Windsor
DATE:27 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 27 March 2024 at 3:15 pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – religion – Shi’a Muslim – race – ‘Syed’ ethnic group – fears harm from Sunni extremist groups – an active member of Tehreek-e-Jaffaria Pakistan – applicants would face persecution involving serious harm from anti-Shi’a groups – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 2.08, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
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 Home Affairs on 8 February 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Pakistan, applied for the visas on 26 June 2015.
In his Protection visa application, [the first applicant Mr A] indicated he was born on [date] in [District 1] in Punjab province, Pakistan. He stated he belongs to the ‘Syed’ ethnic group, is a Shi’a Muslim and married [the second applicant Ms B] on 13 February 2014. He stated he last arrived in Australia on [date] March 2014, having departed Pakistan legally on [date] March 2014, and entered Australia on a Student visa.
In her Protection visa application, [Ms B] indicated she was born on [date] in [District 1] in Punjab province, Pakistan. She stated she is of Punjabi ethnicity, is a Shi’a Muslim and married [Mr A] on 13 February 2014. She stated she arrived in Australia on [date] August 2014, having departed Pakistan legally on [date] August 2014, and entered Australia on a Student visa.
[The third applicant Miss C] was born in Australia on [date], after the lodgement of her parents’ application but before their application was decided, and therefore under reg 2.08 of the Migration Regulations 1994 is taken to have applied for a visa of the same class at the time she was born and her application is taken to be combined with her parents’ application.
[The fourth applicant Master D] was born in Australia on [date], after the lodgement of his parents’ application but before their application was decided, and therefore under reg 2.08 is taken to have applied for a visa of the same class at the time he was born and his application is taken to be combined with his parents’ application.
In his Protection visa application, [Mr A] indicated he fears that if he returns to Pakistan he will be seriously harmed or killed by Sunni extremist groups such as Tahreek-e-Taliban (TTP), Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) because of his Shi’a religion and ethnicity as a Syed. He indicated he was an active member of the Shi’a Muslim community in his area and had been threatened and harmed on several occasions by men from these groups.
In her Protection visa application, [Ms B] stated she fears that if she returns to Pakistan she will be harmed because of who her husband is and because of her Shi’a religion. She commented that she also feared for the safety of her (at that time) unborn baby. She stated that she fears they will be beaten, shot or killed and that their child might be kidnapped.
The delegate refused to grant the visas, finding that neither [Mr A] nor [Ms B] have any prominent or significant religious or political profile such that they would be of adverse interest to anti-Shi’a Sunni militant, extremist or terrorist groups in Pakistan. The delegate concluded that [Mr A] would not unduly draw the attention of anti-Shi’a militant groups upon returning to Pakistan and that [Ms B]’s subsequent claim to fear harm or persecution as a woman was not credible.
The applicants sought review on 23 February 2018 of the decision refusing to grant the visas.
The applicants appeared before the Tribunal on 14 August 2023 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicants were represented in relation to the review and their representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (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
Claims
[Mr A]’s written claims for protection, as set out in his Protection visa application,[1] are summarised as follows:
[1] See the Departmental file.
·He came to Australia on a Student visa in September 2011. He wanted to further his education in Australia and he and his family wanted him to get out of Pakistan for a while because the situation was very dangerous there.
·He is a Syed. This means that he and his family are in the direct line from the Prophet Mohammad. They are also Shi’a Muslims.
·There are many militant groups, such as Tahreek-e-Taliban Pakistan (TTP), Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP), targeting Shi’a Muslims, particularly from Syed families. He is an active member of the Shi’a community in his area. He and his family have received threats from these groups and he has been beaten by men from these groups on several occasions.
·In 2004 he was beaten by a crowd of Sunni men when he was at a Shi’a procession.
·In 2008 he was stopped by several men on his way to work and badly beaten.
·In 2010 his family home was attacked by a group of Sunni militants, who broke into the house and fired shot guns in the air to scare them. He moved to Rawalpindi after this incident but still felt very unsafe. He stayed at home all the time and kept a low profile. He can be recognised wherever he goes in Pakistan because of his ethnicity, name and Shi’a religion, and would not be safe anywhere in Pakistan.
·He went back to Pakistan in January 2014 to visit his sick mother. He also married [Ms B] at this time. It was very unsafe there when he returned. The car he was travelling in was shot at by Sunni militants. He was not injured but feared for his life.
·He returned to Australia on [date] March 2014 and [Ms B] joined him in Australia in August 2014 as a dependent on his Student visa.
·He reported the incidents but the police never take any action. The authorities do not help Shi’a people. The authorities cannot protect him as they do not have control over the extremist groups.
Relevant additional matters raised in [Ms B]’s written claims for protection, as set out in her Protection visa application,[2] are summarised as follows:
·She came to Australia in August 2014 to be with her husband who was studying here. She fears that if she returns she will be harmed as the wife of [Mr A] and because of her Shi’a religion. She also fears for the safety of her unborn baby, who might be kidnapped.
·After her husband was shot at in February 2014 they moved to Islamabad but did not feel safe there either. They went to [Country 1] for a few days, then went back to Pakistan. Her husband returned to Australia shortly after because it was not safe and she stayed with her family until she came to Australia in August 2014.
[2] See the Departmental file.
On 23 August 2017, the then representative submitted statutory declarations for [Mr A] and [Ms B], both sworn on 22 August 2017.[3] Relevant additional matters raised in [Mr A]’s statutory declaration of 22 August 2017 are summarised as follows:
[3] See the Departmental file.
·He fears harm as a Syed which is a very important caste in Pakistan as it means they are in the direct line from the Prophet Mohammad. This makes them very recognisable and targeted by extremists.
·He also fears harm because he is an active member of Tehreek-e-Jaffaria Pakistan (TJP). His whole family are members. TJP educates and supports Shi’a Muslims about their rights. His father, cousins and he are all involved with the local leadership. He fears he and his family will be harmed on account of his profile. He was involved in the student group at university in about 2002 and in 2005, after he left university, became a member of the main branch. In 2008 he was made [Position 2] in his area.
·At high-school he noticed some classmates did not want to associate with him and his Shi’a friends, saying things like ‘you are not Islamic; you are disbelievers’.
·In 2004 he was attacked in nearby [Town 1] town when he attended a 10^th of Moharram procession there (his cousin was the [Position 2] of TJP there). The local Sunnis objected to the procession and threw stones. They killed the district TJP president who was staying in a safe-house. Two of the Shi’a worshippers were burnt alive. They had to stop the processions altogether in 2006.
·In around 2008 he began receiving threatening letters and phone calls about once a month. He told police but they did nothing. One evening he was stopped by two men when walking home. They told him to stop his work with TJP and abused and pushed him.
·A few months later he was chased by two motorbikes when he was riding through the city. They stopped him, abused him, told him to stop his TJP work and beat him.
·His father, who works at [a workplace], was also being threatened.
·His brother was attacked in 2009 by a group of Sunni men because of his family connection to the applicant and his father. He was beaten with a big stick and his arm was broken.
·His brother was badly injured one day when he was working in their father’s [store]. A group of Sunni militants came to the store and beat him. They did not steal anything.
·In February 2010 about 3 men broke in to his family home in [District 1] at night time. He heard gun shots and knew they were looking for him so escaped to his neighbour’s house. His father rang and said they were threatened they would be killed if seen in processions or taking part in Shi’a activities.
·Two months later he moved to Rawalpindi where he stayed with a friend’s relatives and then at his friend’s brother’s house. He did not feel any safer there as the area is populated with Sunni Muslims, especially TTP and SSP members. His friend’s brother suggested he go to Australia to study.
·Some senior TJP members decided to go to Iran in July 2011, but 4 of 7 were killed in Quetta by Sunni militants. He knew he had to get out of Pakistan as well or he would be killed. He waited in Rawalpindi until his Student visa was granted in August 2011.
·He returned to Pakistan briefly in January 2014 as he was homesick, his mother was ill and to get married, but was fearful due to the security situation. The situation was much worse that he expected. There were many kidnappings by the TTP.
·He was married to [Ms B] on 13 February 2014. Two weeks later he was attacked by Sunni extremists. He, his father and two friends were shot at by some men standing by the side of the road. Four shots hit the back of the car. They reported the attack to the police, but nothing came of it.
·He and his wife went to Rawalpindi for two weeks and then went to [Country 1] to visit a friend. He returned to Australia in March 2014 and [Ms B] went to her parents’ home until her Student visa was approved.
·He wanted to apply for a Protection visa when he got back to Australia but waited for [Ms B] to arrive (in August 2014). They went to a private lawyer but could not afford the fees. They found out about Refugee Legal in early 2015 and they helped them make their application a few months later.
·In April 2016 his brother was attacked again and beaten in the street as he was going home after work. He was hospitalised for a few days. He went to the police but they did not make a report. His brother and family have since left Pakistan and are now living in [Country 2].
Relevant additional matters raised in [Ms B]’s statutory declaration of 22 August 2017 are summarised as follows:
·She fears they will be seriously harmed or killed by Sunni militants due to their Shi’a faith, Syed caste, because her husband and his family members are active TJP members and because they have been living in Australia for many years.
·She also fears that, if she is separated from her husband, she will suffer serious harm as a young woman and single mother without male protection.
·She has taken on Australian values, and her children will be seen as foreigners and will be at greater risk of being harmed.
On 29 August 2017 the applicants were interviewed by the delegate regarding their claims for protection.
On 1 September 2017, the then representative provided scanned copies of two undated letters from the [a position] of the TJP for [District 1]; a hospital discharge slip for the applicant’s brother (indicating a discharge date of 2 May 2016); and a police First Information Report (FIR) dated 25 February 2014, purportedly by the applicant’s father, in relation to the claimed shooting incident on 25 February 2014.[4]
[4] Ibid.
On 12 September 2017, the then representative provided a written submission and supporting documents in support of [Mr A]’s claims for protection.[5] The submission included legal argument and references to country information. As well as certified copies of the originals of the documents noted at paragraph 23 above, the following additional documents were provided:
·Copy of a letter dated 4 September 2017 from [the] General Secretary of [Organisation 1];
·Certified copy of a newspaper article regarding the claimed incident where [Mr A] was shot at while driving in 2014, and certified translation;
·FIR made by [Mr A]’s father regarding the claimed attack on the family home in 2010, with certified translation;
·FIR made by [a named person], regarding the incident where TJP members were killed in Quetta by Sunni extremists in 2011, with certified translation;
·Certified copy of medical results for [Mr A]’s mother dated 10 January 2013, indicating she had high blood sugar levels.
[5] Ibid.
On 8 August 2023, the current representative provided a pre-hearing submission in support of the applicants’ claims for protection.[6] The submission included an overview of the applicants’ claims, legal argument and references to country information. The following additional documents were provided:
·Statutory declaration by [Mr A], sworn on 7 August 2023;
·Statutory declaration by [Ms B], sworn on 22 August 2023;
·Copies of photographs of the applicants at Shi’a cultural events and participating in protest activities in Australia;
·Affidavit by [Mr A]’s brother;
·Letter of support for [Ms B] from her employer, [Ms E];
·Four letters of support from [Organisation 1];
·Two letters of support from [Organisation 2].
[6] See the Tribunal file.
Relevant additional matters raised in [Mr A]’s statutory declaration of 7 August 2023 are summarised as follows:
·He has read the delegate’s decision record and understands that the delegate had concerns regarding his involvement with the TJP as well as the delay in him seeking protection.
·He incorrectly stated that TJP leader Arif Hussain died in 1985 (rather than 1988) because he was nervous at the interview.
·He was the [Position 2] for [District 1], [rather] than the [Position3].
·He was not sure how to respond to the delegate’s questioning that the TJP is banned in Pakistan and connected to terrorists. He wishes to make it very clear that the TJP does not promote terrorism or extremism but is an organisation promoting the religious rights of Shi’a people in Pakistan.
·The delegate expressed concerns about the legitimacy of some of the documents he provided. He maintains that they are all genuine.
·The delegate also doubted the genuineness of his fear of harm because he returned to Pakistan in 2014. He did this because his mother has [a medical condition] and he was afraid he would never see her again.
·He did not return directly to Australia after the shooting attack in 2014 because of the enormous cultural and family pressure he was under. As it was an arranged marriage, he did not want his wife’s family to consider he had abandoned her.
·He is active within the Shi’a community in Australia and has supported cultural activities as well as attended numerous rallies.
·He knows the TJP has largely been diminished since he left Pakistan. It still has a presence, however, and is now called the Shi’a Ulema Council of Pakistan. He is still in touch with the current leadership, who still visit his father.
·In Pakistan, they are stopped from practicing their Shi’a faith in their own homes.
·His children will be easily identified as foreigners in Pakistan and will be at risk of being kidnapped, harmed or abused. He is also afraid that his wife will be targeted because of his work in the Shi’a community.
·His brother fled to [Country 2] after receiving threatening letters but had to return to Pakistan. On his return, he was detained by police for two weeks and tortured. In or around 2021 he had to sell the family home and move to a rural area to keep a low profile. Where they are now living there are no jobs, no school and no hospital. His brother is trying to survive by farming and the applicant has to support him.
·If they had to return to Pakistan they would have nowhere to live and he does not know how they would survive. They have no savings.

Relevant additional matters raised in [Ms B]’s statutory declaration of 22 August 2023 are summarised as follows:
·They are able to practise their Shi’a religion freely in Australia and without fear.
·She fears they will be at risk because they have lived in Australia for many years. She fears her children will stand out and be targeted as foreigners and will be at increased risk of being targeted by kidnappers or child abusers.
·She has become more liberal and has taken on Australian values, stopped wearing the niqab and has a job. Her husband is supportive of her but she fears being rejected by her family if they returned to Pakistan. She would face a lot of pressure to conform to their religious and cultural expectations.
·Her family home has been left to her brother. They have nowhere to go if they return to Pakistan.
·Sunni extremists torture and kill Shi’a Muslims for a reward.
·Women are not safe in Pakistan. Her daughter will not have any freedom.
Relevant matters raised in the affidavit of [Mr A]’s brother, [name], dated 3 August 2023, are summarised as follows:
·His brother was a staunch member/worker of Shi’a Ulema Council Pakistan, formerly known as Tehreek-e Jafaria Pakistan, an organization working for Shi’a rights in Pakistan. He was [Position 2] of the Shi’a Ulema Council Pakistan for [District 1] City.
·His brother often had to travel to other cities to attend organizational meetings with other leaders and was exposed by anti-Shi’a groups and often received threatening letters and phone calls. He has been tortured and subjected to attempted murder.
·They have also been oppressed and tortured by the anti-Shi’a group Sipah-e-Sahaba. Due to these threats and daily problems, they have sold their house to save their lives and are living in an anonymous place where there is no concept of a happy life.
Evidence from the hearing
At the hearing, the applicant indicated he has his parents, a brother and two sisters living in Pakistan. He indicated his brother is married with three children and for the last two years they have been living with his parents in a country town, [in] Punjab province, where they are doing some small scale farming. He said his two sisters also are married.
The applicant confirmed that he was born and grew up in [District 1] in Punjab province, where he did his schooling and went to college. He said his father, who is now [age] years old and has retired, used to be a farmer, then went to [a country] where he was a labourer then returned to Pakistan where he had his own [store]. After that he worked as a [occupation] for approximately 15 years.
The applicant confirmed his mother has [a medical condition] and [is treated] to manage her condition. He indicated his mother also currently has problems with her lungs.
When asked what work he has done, the applicant indicated he used to work for a [company] in Pakistan. He said after he arrived in Australia he worked at a [workplace] for four years and since 2015 has been [doing specified work].
Noting that he indicated in his first statutory declaration that he had a happy childhood growing up in [District 1] and enjoyed primary school, the Tribunal asked the applicant when the situation there started to change. He said things were different when he went to high school because it was no longer just people from his neighbourhood. He indicated that was when he first experienced discrimination because he is a Shi’a.
When asked, the applicant indicated the population of [District 1] district is almost [number] million, while the town of the same name has about half a million people. He indicated there are two other towns in the [district]. When asked if his area in [District 1] was a predominately Shi’a area, the applicant indicated that was not the case, commenting that for every Shi’a household there would be 10-15 Sunni households. He said in his street there were three Shi’a households and 15-20 Sunni households.
When asked if he would describe his family as wealthy, the applicant said, ‘no’, commenting that they are ‘middle class’. The Tribunal queried that they could afford for him to go to university and complete a [degree]. He said that was not expensive in Pakistan. When queried about his being able to come to Australia to study, he said his family sold some land inherited from his grandparents.
The Tribunal asked the applicant how he became involved with Jaffaria Students when he went to university in 2002. He said there was a small group of Shi’a students in the college at that time and they were looking to bring more students into the group. He said there was a Jaffaria Students organisation before that but they were not advocating very much for Shi’a students because the Sunni groups on campus were very strong and would bully the Shi’a students. When asked, he said there were about 35-40 people involved with the Jaffaria Students organisation while the Sunni groups numbered around 1000 of the more than 1500 people on campus.
When asked what sort of activities he was involved in with the Jaffaria Students organisation when he was at university, the applicant said they had a weekly program on Thursdays and annually they would celebrate the month of Muharram, including the 10th day of Muharram, Ashura, which marks the martyrdom of Hussain Ali. He indicated they also celebrate the month of Safar and Arba’een, marking the 40^th day of mourning for Hussain Ali. He said the annual program focused on commemorating significant events while the weekly program was to assist the students not to be bullied by other students and to make them aware they could approach the committee if they had a problem and the committee would inform the university management. He added, however, that the university management mostly comprised Sunnis and never helped them. In that context, the Tribunal queried the applicant regarding the comment in his first statutory declaration that he very much enjoyed his time at university with Jaffaria students. He responded that he felt he was doing something good for his community and would be rewarded for that in the hereafter.
When asked about the incident in 2004 where he claims the Shi’a procession commemorating Ashura on the 10^th day of Moharram was attacked, the applicant commented that they had problems with a Sunni group in that town ([Town 1]). He commented that they brought a horse to the parade which was to represent the horse that belonged to Imam Hussain, the grandson of the Prophet. He said, in that town, the Sunnis had indicated they could have 50-60 people in the street but could not bring the horse. He said there was a lot of pressure on the police from the Sunni group, so to calm the situation the police put their District President under house arrest and put a guard on his house.
The applicant said 500-600 people were involved in the procession but Sunnis along the route of the procession started throwing bricks and stones from the rooftop and some people on the roadside had iron rods and bamboo sticks. He said people tried to escape but some were beaten as they tried to run away, including him and his brother, cousin and sister-in-law. He added that two people were badly beaten then wrapped in a blanket and burnt to death. He said the Sunni mob then went to the District President’s house and the police did not stop them from entering, and they shot him, put his body on the road and urinated on his corpse.
When asked why there was such strong objection to having the horse in the procession, the applicant it was ‘just hate’. He said they hate the Shi’a people and need some excuse for their actions. When asked if there was a religious basis for it in Sunni doctrine, he said it is because it reminds them of the killer of Imam Hussain, who is respected by them. He added that members of these groups do not want there to be any Ashura processions held in Pakistan.
The applicant said they would obtain a permit for every procession, 400-500 people usually would participate and the police knew this would be the case. He indicated that it was usual for both men and women to be involved in the procession together, with men at the front and women following them.
When asked if those processions had been happening every year up to that point without any issues, the applicant said after 2004 there was no procession for two years. He said that things changed in 2003 when they had threats trying to stop the procession and then in 2004 the Sunnis were successful in stopping the procession.
The Tribunal asked if the applicant if he always attended processions in [Town 1] or if there were processions in [District 1] as well. He said he was in [Town 1] in 2004 and after that, they tried again the following two years to have a procession in [Town 1] but were not successful so he joined in [District 1] as ‘a normal person’. When queried whether he was saying the processions were still able to occur in [District 1] after 2004, the applicant indicated he was. He said the Sunnis objected in some areas but not all, and in [District 1] they would have to walk quietly and not sing mourning songs. He added there was one mosque which had a religious school and people would be standing on the roof with rocks and bricks and if the Shi’a people said anything they would attack.
The Tribunal queried the applicant that at paragraph 10 of his first statutory declaration he indicated that approximately 1,000-2,000 Shi’a Muslims took part in the 2004 procession. The applicant responded, ‘maybe’.
Noting that he indicated in his first statutory declaration that he became a member of the main branch of TJP in 2005, after he left university, and in 2007 took on a more active role, the Tribunal asked the applicant what these activities comprised. He said they went to different country towns in the region, where the Shi’a live, to discuss with them if they have problems, such as being discriminated against or bullied by the Sunni community, and need help. He added that if Shi’a wish to have a majelis (religious gathering) at their home, while they technically don’t need a permit to do this, if they do not get a permit, the police will come and attendees could be arrested. He added that, if a majelis was held without a permit, the police could also arrest the Shi’a leadership, so it can affect the whole community. For that reason, he said they tried to convince local Shi’a to obtain a permit from the police. When asked, he said such gatherings could involve 70-100 people at someone’s home. He indicated they were also held at an Imambargah (Shi’a place of worship), but added that Shi’a feel it is a sacred thing to host a majelis and have the Imam and worshippers attend their home, especially when it is a big gathering that then moves on to an Imambargah.
When asked about what role his father played with TJP, the applicant said he assisted senior members and, because of his job [he] helped if anyone was arrested and assisted community members who were involved in legal disputes.
When asked about the role of his cousins, the applicant said the one who provided the affidavit was working with [a senior person] in [Town 1]. He said he was the one who introduced them to TJP. He added that, after the incident in 2004 he had to leave Pakistan and went to [another country] due to the threats his family was facing.
When asked about being made [Position 2] in his area in 2008, the applicant said he was made [Position 2] for [District 1] because he had been working actively since 2002, had a ‘background’ and had formed a range of contacts. He said he attended meetings with the President of the City Council regarding the best routes for processions, so they could stop in front of Shi’a homes, where they would be served water, but avoid areas where there might be conflict. The applicant indicated fund-raising activities were undertaken with selected contacts, such as shopkeepers, so they could bring scholars from other cities to speak at majelis held at the Imambargah.
When queried in relation to his claim to have been targeted individually from around 2008, the applicant commented that it was due to the enmity which started in 2004. He said when the Sunnis see an individual becoming very active and promoting the Shi’a school of thought, they try to stop them advocating for Shi’a rights by sending letters and making threatening calls, to discourage the Shi’a youth from coming forward.
He said one day he was coming from work when two guys on a motorbike stopped him, abused and threatened him, holding his neck. He said they did not use his name but told him to stop working for Shi’a rights.
When asked about the subsequent incident (a few months later) mentioned in his first statutory declaration, where he stated he was chased on his motorbike by two men on motorbikes, the applicant initially said he did not remember that incident. When queried that he stated he was beaten quite badly, the applicant said he did not remember it at first because the Tribunal stated he was riding through the city rather than was chased out of the city. The Tribunal queried the applicant that he indicated it was quite a significant incident because he was very scared after the incident and started going out a lot less and limiting his activities with TJP. He commented that he was scared because, at the time, he saw ‘blood in their eyes’ and knew they wanted to kill him and they were very aggressive and angry.
When asked if his brother was also a member of TJP, the applicant said he was but commented that his brother was not active like he was. He added that the Sunnis had enmity towards his brother because his brother was related to him. He said his brother also used to work with his father when his father had a [shop].
The applicant indicated that his brother was attacked in 2009 because at that time the Sunnis were ‘following’ the whole family. He commented that after that, his brother moved with his family to the countryside. He indicated this was a temporary move, for about 18 months, when his father was working at the [workplace]. He commented that when his brother moved back to the city, he found they were facing the same problems, and has now moved to the countryside permanently.
In relation to the claimed incident in February 2010, the applicant said one evening some men pushed open the main gate, entered the courtyard of his family home and fired a gunshot in the air. He said this might have been to frighten and threaten them or because they wanted to kill him. He said at the time he was on the roof with his mother while his father and brother were in the courtyard. He said he was able to run across to his neighbour’s house. When asked if he knew what prompted this escalation, he said it was because he and his father were working for Shi’a rights. He said it was the culmination of events from 2004 because the Sunni extremists never forget and always try to teach a lesson to those who work for the Shi’a community.
The Tribunal asked the applicant why he stayed at home for another two months after this incident rather than moving to Rawalpindi immediately. He said they reported the matter to the police and thought the police might provide protection and find the people responsible but it became clear that the police had no intention of helping them. The Tribunal queried the applicant whether they really thought the police would help them as it had got the sense from his statements that the police had never been any help when reports were made. The applicant commented that the police filed a report but they never seemed to do anything to find the persons responsible and just said they are working on it. Because of that he did not think it would be safe to stay at home any more.
The Tribunal asked the applicant why he thought Rawalpindi would be safer. He said it was because they knew him in [District 1] but not in Rawalpindi. When asked if he thought of going somewhere like Lahore, he said he did not as Lahore is riskier. He said in Punjab there are groups like SSP and LeJ which the government refers to as the ‘good Taliban’ because they do not undertake attacks in public places, but they are still extremists and they have a stronghold in Lahore.
The Tribunal queried the applicant that he stated in his first statutory declaration that the area of Rawalpindi he went to was populated by Sunni Muslims, especially TTP and SSP, was very dangerous and he was too afraid to leave the house. He commented that the extremists are everywhere in Pakistan but are more concentrated in some areas. He said he was mistaken about Rawalpindi as the extremists have a strong presence there and in neighbouring Islamabad as well.
When asked, the applicant said his friend’s brother suggested he seek a Student visa to study in Australia because he knew someone who was working for Australian Student visas.
When asked why, given his experiences, he did not seek protection when he got to Australia on a Student visa in 2011. The applicant said he was missing his mother and it was very hard for him to live without her and then she became very sick and his family told him she could die soon so he thought somehow he would return and see her again. He indicated he applied for a new Student visa but had a medical issue [which] delayed the grant of that visa for an extended time.
The Tribunal asked the applicant about the ‘other senior members’ of TJP from his area who he claimed had moved to Islamabad but were not safe there, who he said decided to go to Iran in 2011 but were killed enroute in Quetta in Balochistan, Pakistan, by Sunni militants. The Tribunal observed that there doesn’t appear to be anything in the material that he provided that links those people to TJP, and Quetta is a known stopping-off point for Shi’a pilgrims who are crossing the border to go to Iran on pilgrimage. The applicant responded that the delegate said it was a Shi’a pilgrimage but observed they were quite young and were working for Shi’a rights like he was, in the same towns, and that was why they wanted to leave Pakistan. The Tribunal queried why the press report made no mention of them being senior TJP people. The applicant said the press don’t work for the Shi’a people and don’t want people to see them as victims of terrorism and have any sympathy for them, and don’t want to raise issues regarding what the authorities are doing in relation to Shi’a rights.
The Tribunal suggested that there are elements of the Pakistan media, such as Dawn newspaper, that report on these sorts of issues. The applicant indicated he did not think this is the case.
When asked which of the people killed was the ‘city president’ of TJP the applicant said that was [Name 1], while [Name 2] was an old school friend of his.
The Tribunal observed that the legal status of TJP has been raised because there is country information (a list prepared by the Pakistan National Counter-Terrorism Authority) current as of 13 June 2016 that indicates Tehrik-e-Jaffria Pakistan (TJP) is among 65 organisations proscribed/banned by the Pakistan Ministry of the Interior (having been notified as such on 28 January 2002).[7] The Tribunal asked the applicant, if TJP was a banned organisation, how was it able to operate without its people being arrested by the authorities. The applicant commented that, as he explained to the delegate, they changed their name to the Shi’a Ulema Council (SUC). He added that, when he applied for protection, the organisation was known as TJP. The Tribunal commented that while his most recent submission refer to the SUC all his previous supporting documents referred to TJP, and he provided support letters on TJP letterhead in September 2017. He said these letters were from the old ‘pad’. The Tribunal asked why the letters don’t refer to the SUC rather than the TJP. He indicated the Secretary wrote the letters from the old pad because he told them he had mentioned in Australia that he was working for the TJP. The Tribunal commented that TJP was proscribed on 28 January 2002 and queried why they still had old pads around from 15 years previously, and that it seems strange that they would still be using a title from an organisation that was banned in 2002. The applicant said he wanted to give us a clear picture of TJP rather than confuse us by raising SUC. He added that, internally, they were still TJP even though officially they are SUC.
[7] Government of Pakistan National Counter Terrorism Authority, Islamabad, 65 Organizations Proscribed by Ministry of Interior u/s 11-B-(1) r/w Schedule-1, ATA, 1997, type="1">
The Tribunal asked the applicant why, when he returned in January 2014, he didn’t just arrange to meet his mother in [Country 1] rather than travel back to Pakistan, where it appears he spent over seven weeks. The applicant said his mother was not able to travel on a plane because of her hearing and due to the noise. He said she never travels by plane. The Tribunal also queried the applicant why his family had not warned him if the situation was a lot worse than he realised. He commented that they did warn him. The Tribunal also queried whether he is saying he had no prior knowledge that he was to marry on his return. He said he knew nothing about it until he went there. He added that his mother thought it would be the last time she would see him and wanted to see him enter marriage. He said he saw his wife for the first time on the day they were married.
The Tribunal asked the applicant why he thought Sunni extremists would have maintained an interest in him and would want to attack him when he returned in January 2014 given he had been away since 2011. The applicant said it is an ‘old enmity’ and they never forgive or forget and want to send a lesson to others.
When asked to describe what happened, the applicant said he went to the village next to [District 1] to see a friend and when he was returning they saw two people waiting on a motorbike. He said as soon as the men saw the car they tried to shoot but he moved to overtake a truck and they shot at him from behind. The Tribunal queried how these people would know that he would be coming by in a rental car at that time. The applicant said they ‘have connections’. The Tribunal queried why they would not just have come to his family home as he indicated they had previously. He said that is a crowded area and not a safe place for them to escape from.
The Tribunal asked the applicant why he did not leave Pakistan immediately after that incident. He indicated he wanted to leave but his parents forced him to stay for cultural reasons as he was a newlywed and they thought he should spend as much time as possible with his new wife. He indicated [Ms B] could not travel at that time as she did not yet have a passport. He indicated he thought they would be safe in Rawalpindi for a short time.
The Tribunal asked the applicant about the statement in his statutory declaration of 7 August 2023 indicating that his brother fled to [Country 2] but then had to return to Pakistan. The applicant said his brother had not felt safe in Pakistan since 2016. He added that, after he left Pakistan in 2014, the SSP people tried to terrorise his family, especially his brother, so his brother left and went to [Country 2]. When asked why his brother sought to go to [Country 2] rather than Iran, the applicant said the Iranians, while their Shi’a brothers, are very nationalistic and don’t like Pakistanis. He added that his brother also has some friends in [Country 2] and was living with them. When asked, he indicated his brother had to return to Pakistan due to the COVID-19 pandemic. He said his brother was detained illegally (with no arrest warrant) on his return because all Pakistani Shi’a who go to [Country 2] or Iran are investigated as the authorities think they may be working for Shi’a militant groups.
[Ms B] indicated that her parents and three sisters live in [District 1] while her brother has been living in [Country 3] since around 2009 or 2010 as a permanent resident. She showed the Tribunal a copy of her brother’s visa which indicated he has a ‘exceptional reasons’ permit with work rights.
While acknowledging she was not in the car at the time, the Tribunal asked [Ms B] what she knew about the claimed February 2014 incident. She indicated that she recalls being told that there were some motorbikes and a truck and that shots were fired. She said her husband was scared but thankfully they were saved. [Ms B] said her husband stayed at her parents’ home that night and the next day they went to Rawalpindi. She indicated that she had referred to Islamabad previously because they are twin cities.
The Tribunal invited [Ms B] to expand on her concerns raised in her written statements about her safety and the safety of her children if they had to return to Pakistan. She commented that she was only [age] when they married and had ‘not done much’ with her life but had mainly stayed in the family home. She said when she came to Australia she struggled a lot and experienced depression. She said her doctor advised her to stay busy so she decided to undertake a [course]. She also listened to podcasts to improve her English. She indicated she enjoyed her course and this gave her a new lease on life and new meaning and hope for the future. She commented that they experienced hard times due to the pandemic and lockdowns with her husband losing his job. She indicated she was connected with [an organisation] and they offered her work, commenting that it was a ‘big deal’ culturally for a Pakistani woman in her circumstances to work/pursue a career but her husband gave her permission to do so.
[Ms B] indicated that she was interviewed by [Ms E] (who attended the hearing as a ‘support person’ for her) who assisted her to obtain work and apply for a scholarship to undertake a [course]. She said this was very challenging but it gave her a new sense of purpose and meaning in her life which she could not have achieved in Pakistan. She indicated she now wishes to open a [business]. She added that she now has an understanding of women’s rights which is vastly different to the treatment that women experience in Pakistan.
The Tribunal observed that her application indicates that she completed a [degree] in Pakistan in May 2013 and also undertook a vocational training [course]. [Ms B] commented that she completed 7 months of a 9 month [course] before she married but indicated it was a very basic/low level course. She indicated she completed the course after her husband departed for Australia.
In relation to her concerns for her two Australian born children, [Ms B] commented that the whole family including their children have been actively involved with the local Shi’a community in Australia and attend the community centre and mosque regularly so her children are well informed regarding Shi’a cultural and religious practices. She added, however, that the children are ‘completely clueless’ regarding the religious persecution faced by the Shi’a community in Pakistan. She said the children could not fathom life in Pakistan and sending them to Pakistan could seriously affect their mental health. She said they can understand some Urdu but can not read and write Urdu. She commented that they would be readily identified as people who had been raised as ‘free Shi’a’ in Australia and would experience bullying, harassment and discrimination in Pakistan as a consequence.
The Tribunal observed that the representative, in her submissions, has cited country information relevant to the applicants’ claims, but also shared with [Mr A] and [Ms B] relevant country information drawn from the current DFAT Country Information Report regarding the estimated size of the Shi’a population in Pakistan; common Shi’a names and the use of ‘Syed’ by both Shi’a and Sunnis in Pakistan; the security situation in Pakistan generally; the rise of the influential Sunni extremist movement and political party Tehreek-e Labaik Pakistan (TLP); the increased prevalence of blasphemy cases; people trafficking; the risk of sectarian violence and societal discrimination faced by Shi’a; and the prevalence of fraud, including document fraud in Pakistan.[8] The Tribunal commented that, noting the estimated size of the Shi’a community in Pakistan, its role is to assess whether, given their particular circumstances, there is a real chance they would suffer persecution or a real risk they would face significant harm, if they returned to Pakistan.
[8] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.5, 2.34-2.37, 2.40-2.41, 2.46-2.48, 3.28, 3.31- 3.37, 3.48, 3.55-3.61 and 5.52-5.54.
[Mr A] commented that, regardless of the estimated size of the Shi’a community (he suggested it may be up to 25 million), they are still surrounded by people who are anti-Shi’a, don’t respect their beliefs and who view Pakistan as their (that is a Sunni Muslim) society.
[Mr A] said he doesn’t know about the extent of fraudulent documents in Pakistan but commented that they have provided the original documents.
In relation to blasphemy and the TLP, [Mr A] commented that the TLP’s agenda is to have the Shi’a declared infidels/a non-Muslim group like they did to the Ahmadi in 1973-74. He added that if they were successful in achieving this it would result in widespread bloodshed across Pakistan. He added that TLP’s agenda is to use blasphemy cases to put pressure on Shi’a Muslims especially. He commented that earlier in August 2023 the Pakistani Senate passed an amendment bill increasing the penalty for related offences (relating to s 298A of the Pakistan Penal Code - defiling the ‘sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’) from 3 years to life imprisonment and making such offences non-bailable. He said under the new law all their (Shi’a) beliefs become criminalised and they could be arrested even for expressing their beliefs privately in their homes.
[Mr A] added that they are concerned for their children because, having been raised in an open society like Australia, they don’t know much about Pakistan and the challenges of living there. He added that they also have no home to go to, no job, no savings and don’t know how they would survive in Pakistan. He said they do not want their children, particularly their daughter, who is now [age] years old and expresses her beliefs very openly, to grow-up living in fear of what will happen to them. He also commented that his wife feels safe in Australia and they are concerned about the poor economy in Pakistan, increase in crime, and the risk of their children being kidnapped for ransom as they will be seen as foreigners who have a lot of money.
[Ms B] stressed that they are readily identifiable as Shi’a Muslims from their various names, including the use of [name]. [Mr A] indicated that many [people with this name] in Pakistan are Shi’a’s working in professional roles which makes them a target for extremists. He also commented that here are 24,000 Sunni religious schools which are teaching young Sunnis extremist views. He commented that when there are allegations of blasphemy, mobs can form and may target any Shi’a people they come across, not just the person accused of blaspheming, and they may burn houses or even whole villages.
[Ms B] commented that, as a women, it would be very hard for her to return to Pakistan. She said it would be hard for her to continue working as women generally are not allowed to work in Pakistani society. She commented that her husband supports her working in Australia because there is no societal pressure on him but in Pakistan it is a much harder due to family and societal pressure. She added that sometimes a brother will kill his own sister for the sake of family honour. She also cited a recent incident where a woman who ran out of petrol while driving near Lahore was raped in front of her children, and when she went to police was asked why she had not stayed at home.
The representative requested that additional time be provided to enable them to get English language translations of a number of social media posts that the applicant has made while in Australia that are in Urdu. The Tribunal agreed to this request.
Post-hearing submission
The representative made a post-hearing submission on 29 August 2023. This included comments in response to some of the matters discussed during the hearing as well as copies of five social media posts made by the applicant between September 2020 and October 2022, with certified English translations. The posts are critical of the ideology motivating those who kill Shi’a and the response of the Pakistani authorities to attacks on members of the Shia community.[9]
[9] See the Tribunal file.
Relevant additional matters raised in the post-hearing submission are summarised as follows:
·[Mr A]’s account of the reasons why he continued to refer to the TJP even though it was proscribed in 2002 is credible in the context of country advice (cited in the submission) indicating that TJP has changed its name several times in response to proscription but its leaders have remained politically active as the ban is ‘somewhat ambiguously enforced’ and the TJP is still seen as a main political spokesgroup for the Shi’a community.
·Argument regarding why [Mr A]’s risk profile is more prominent than that of general members of the Shi’a population in Pakistan.
·Reiteration of DFAT’s assessment in its most recent Country Information Report that Shi’a Muslims (generally) in Pakistan are ‘at moderate risk’ of sectarian violence and societal discrimination.
·Summary of the applicants’ activities in Australia and the assertion that these activities could become known to anti-Shi’a actors in Pakistan increasing the applicants’ risk profile.
·Further discussion of the recent changes to Pakistan’s blasphemy laws raised by the applicant at the hearing. It is noted that Pakistan’s Human Rights Commission has raised concerns that the new laws will target religious minorities, such as Shi’a. It is further noted that Freedom House reported that ‘Members of the Shi’a sect, Christians, and other religious minorities remain at risk of blasphemy accusations that can arise from trivial disputes and escalate to criminal prosecution and mob violence’; and the UK Home Office reports that use of blasphemy laws ‘often arise from trivial disputes and social media activity’. In this regard it is asserted that a social media post by the applicant made on 21 May 2021 (included among the five submitted) could be interpreted as ‘insulting’ the companions of the Prophet Muhammad. It is also noted that DFAT’s Smartraveller advisory on Pakistan warns that if a person has made public comments, including on social media, that may be construed as blasphemous, they should not travel to Pakistan.
Findings and reasons
Applicants’ identities
On the basis of the certified true copies of the adult applicants’ Pakistani passports and the certified true copies of the birth certificates of their two children provided to the Department,[10] the Tribunal accepts that all the applicants are citizens of Pakistan and that their identities are as claimed. The Tribunal accepts that Pakistan is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[10] See the Departmental file.
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Pakistan, there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Credibility
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.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
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 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.
Assessment of claims
Background
The Tribunal accepts that the applicants are of the Shi’a Muslim faith. The Tribunal accepts that, while the name [name] may also be used by Sunni Muslims, the applicants’ full names readily identify them as Shia Muslims and as persons of some standing within the Shi’a community.
DFAT indicates that, according to the 2017 census, Muslims comprise 96.47 per cent of the population of Pakistan, which was 207.7 million at that time (with an annual growth rate of 2.4 per cent). It is estimated that 80-90 per cent of the Muslim population are Sunnis and 10-20 per cent are Shi’a, that is, there are an estimated 20-40 million Shi’a Muslims living in Pakistan. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad.[11]
[11] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.5, 3.1, 3.28, 3.55 and 3.76.
[Mr A] first came to Australia in in September 2011, on a Student visa. He returned to Pakistan in January 2014 and married [Ms B] there in February 2014. He returned to Australia on a Student visa in March 2014 and [Ms B] joined him on a Student visa in August 2014. Their children were born in Australia in [year] and [year] and are now aged [age] and [age] years.
[Mr A] claims he was targeted for serious harm while he was living in Pakistan and when he visited in January 2014 by members and supporters of Sunni militant groups such as LeJ, SSP and the TTP because of his Shi’a faith, Syed caste and work in support of TJP.
In its 2016 Thematic Report on Shi’a in Pakistan, DFAT indicated that Shi’a continue to face a threat from anti-Shi’a and militant groups, particularly Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) or Ahl-e-Sunnat Wal Jammat (ASWJ). DFAT commented that most of these networks have broad agendas, which include strong anti-Shia sentiments. DFAT indicate that various Pakistani Taliban groups operating under the banner of the Tehreek-e Taliban Pakistan (TTP) have also claimed responsibility for attacks on Shias. DFAT indicated that LeJ is the main perpetrator of anti-Shia violence in Pakistan, commenting that it is a collection of loosely coordinated cells linked to other militant networks including the TTP. Originally based in the Punjab as an offshoot of the SSP, LeJ aims to establish an Islamist Sunni state in Pakistan. It also seeks to have Shias declared ‘non-believers’ and to eliminate other religious groups including Jews, Christians and Hindus. LeJ has claimed responsibility for a large number of attacks upon the Shia community.[12]
[12] DFAT Thematic Report, Shias in Pakistan, 15 January 2016, sections 4.4-4.5.

In its current Country Information Report, DFAT describes LeJ as a radical Sunni militant group that follows the Deobandi school of Islam and seeks to eradicate Shi’a influence from Pakistan, commenting that it is among various anti-Shi’a sectarian groups that operate in Pakistan. DFAT indicate that the group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against ethnic Hazara Shi’a), places of worship and leaders, as well as against other religious minorities. It is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former Federally Administered Tribal Areas (FATA) of Pakistan, Karachi and Balochistan.[13]
Claim to have been targeted for harm by Sunni militant groups
[13] DFAT Country Information Report, Pakistan, 25 January 2022, section 2.41.
Having carefully considered the totality of his evidence, the Tribunal accepts that [Mr A] was active in the Shi’a community in [District 1] district in Punjab province and active in working for Shia rights. The Tribunal accepts that he was an active member of Jaffaria Students when he went to college in 2002 and joined what had been known as TJP after he left university. After considering the recent submissions provided on this matter, the Tribunal accepts that many in Pakistan continued to refer to the organisation as TJP even after it was proscribed in 2002, because the organisation changed its name several times in response to proscription (including subsequently to the Shia Ulema Council (SUC)), and because the ban on the TJP was loosely enforced.

100. Considering the country information regarding the activities of groups such as LeJ and SSP, the Tribunal considers [Mr A]’s evidence regarding him and members of his family being threatened, harassed and assaulted because of their Shi’a faith and activities on behalf of the community to be generally plausible. The Tribunal found his oral evidence at hearing to be informed and generally credible.
101. The Tribunal had concerns that the applicant returned to Pakistan in January 2014 and spent seven weeks there. The Tribunal accepts that he did this knowing that there was some risk that he might be harmed, because of his closeness to his mother, her illness and his concern that he might never see her again. The Tribunal also accepts that he remained in Pakistan for that length of time because of cultural/family pressure to spend time with his new wife after an arranged marriage.
102. While the Tribunal has some doubts that the claimed incident in February 2014 occurred, noting that it is claimed that assailants were somehow informed that [Mr A] would be approaching in a hire car and were waiting to ambush him, the Tribunal accepts that it is possible it occurred. In any event, if the incident did not occur, the Tribunal does not consider that would invalidate his claim to be at risk of harm from Sunni militant groups such as LeJ due to his Shi’a faith and his activities on behalf of the Shi’a community.
103. The Tribunal accepts [Mr A]’s evidence regarding why he delayed seeking protection after returning to Australia in March 2014, noting that he was on a valid Student visa, [Ms B] did not arrive in Australia until August 2014, and he could not afford to seek private legal assistance. The Tribunal accepts that he delayed making the application until [Ms B] arrived and they found out about and sought assistance from Refugee Legal in 2015.
104. The Tribunal finds that [Mr A] has continued to be active in the Shia community in Melbourne and that his wife and two young children have also been active. This includes as members of the [Organisation 2], a not-for-profit religious charity and welfare organisation, participating in religious activities and processions, and being involved with the [Organisation 1], a Shi’a community centre in Melbourne.
105. The Tribunal considers that [Mr A]’s social media posts reveal a strong ongoing interest in the issues confronting the Shia community in Pakistan, including recent developments in relation to Pakistani law and the lack of action by the Pakistan authorities to address anti-Shi’a activism and activities.
106. In its current Country Information Report, DFAT comments that, following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021.[14] DFAT states that causes of insecurity include religious extremism and sectarian hatred.
[14] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.34, 3.31-3.37, 3.55-3.61.
107. DFAT states that religious extremism and intolerance are on the rise in Pakistan and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. DFAT comments that multiple interlocutors told it that the government overlooked religious extremism to avoid antagonising powerful religious lobbies such as the Tehreek-e-Labbaik Pakistan (TLP), a fundamentalist (Sunni) religious movement and political party.
108. DFAT comments that Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations, over 70 per cent of which are against Shi’a. The Centre for Social Justice (CSJ) reported 200 blasphemy cases in 2020, an all-time high, which has been widely linked to rising religious intolerance. Of these 35 were sentenced to death. DFAT also assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and high risk of societal and official discrimination in the form of popular denunciation, unfair trials and inadequate state protection.
109. DFAT also comments that anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision). [Mr A]’s comments at the hearing and his representative’s subsequent submission indicate that that the federal government has amended the blasphemy law to strengthen penalties in relation to ‘insulting’ the companions of the Prophet, which commentators fear may be used to target religious minorities, such as Shi’a.
110. DFAT states that sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.
111. In its current Country Information Report, DFAT has changed its assessment of the risk of harm faced by Shi’a in Pakistan. DFAT now states that it assesses that Shi’a face a moderate risk of sectarian violence and a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence.[15] In the previous (February 2019) report, DFAT stated that, overall, it assesses that most Shi’a in Pakistan face a low risk of sectarian violence, commenting that the risk can vary depending on geographic location and for members of specific groups such as Hazaras and Turis. DFAT commented further that high-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.[16] This change appears to be in response to the rising religious intolerance faced by Shi’a (encouraged by the rise of TLP) and official discrimination in relation to blasphemy accusations.
[15] DFAT Country Information Report, Pakistan, 25 January 2022, section 3.61.
[16] DFAT Country Information Report, Pakistan, 20 February 2019, section 3.104.
112. Having carefully considered the available evidence and the relevant country information, the Tribunal accepts that, should [Mr A] and his family return to his home area of [District 1] in Punjab province now or in the foreseeable future, there is a real chance they will face persecution involving serious harm from Sunni militant groups such as LeJ, SSP and the TTP and their supporters. The Tribunal finds that the applicants’ Shi’a faith and [Mr A]’s activities in support of Shia rights are the essential and significant reasons for the harm and that the persecutory conduct feared by the applicants is systematic and discriminatory.
Real chance of harm must relate to all areas of the receiving country
113. S 5J(1)(c) of the Act requires that if the Tribunal finds the applicant faces a real chance of persecution involving serious harm if he returned to Pakistan, that must relate to all areas of the country.
114. As noted above, DFAT now assesses that Shi’a in Pakistan generally face a moderate risk of societal discrimination and a moderate risk of sectarian violence. While DFAT indicates that some Shi’a (Hazaras, Turis and Bangash) face specific, heightened risks, it does not indicate that there are areas in Pakistan where Shi’a do not face a moderate risk of societal discrimination and sectarian violence.
115. The Tribunal considers that [Mr A] and his family members would continue to be active proponents of their Shi’a faith if they returned to Pakistan and that [Mr A] would continue to be outspoken, including on social media, regarding Shia rights, and this would increase the risk of harm that he and his family members would face.
116. The Tribunal also accepts that the applicants’ names readily identify them as Shi’a which would allow them to be readily identified when seeking to move to a new community.
117. Considering the available evidence, the Tribunal concludes that the applicants face a real chance of suffering persecution involving serious harm anywhere in Pakistan, because of their Shi’a faith, active involvement in Shi’a faith based activities and [Mr A]’s outspokenness in relation to Shi’a rights.
118. The Tribunal finds, therefore, that there is a real chance the applicants would face persecution involving serious harm from anti-Shi’a groups such as LeJ, SSP and the TTP and their supporters due to their Shi’a faith, should they return to any part of Pakistan.
Availability of state protection
119. In this case, the harm that the applicants fear is from non-state agents (LeJ, SSP and the TTP and their supporters).
120. While DFAT comments that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will.[17] DFAT comments that police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Police work in Pakistan is poorly paid and dangerous, and individual police officers often augment their salaries with bribes. The public perception of police is generally poor, although it has reportedly improved in recent years.
[17] DFAT Country Information Report, Pakistan, 25 January 2022, sections 5.1-5.2 and 5.9-5.10.
121. DFAT indicates that despite measures introduced to curb violence across the country under the National Action Plan (NAP) - strengthened powers for military and paramilitary security forces and the establishment of military courts - successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses, and their families.
122. On the information before it, the Tribunal finds that the level of protection available to the applicants from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Therefore, the Tribunal finds that the applicants face a real chance of persecution due to their Shi’a faith, should they return to Pakistan now or in the reasonably foreseeable future.
123. For the reasons given above the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s 36(2)(a).
DECISION
124. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Paul Windsor
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.
…

[2024] AATA 2993

27 March 2024

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