1805756 (Refugee)

[2024] AATA 870

1805756 (Refugee) [2024] AATA 870 (24 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr George Botros

CASE NUMBER:  1805756

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Windsor

DATE:24 January 2024

PLACE OF DECISION:  Melbourne        

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

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

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

Statement made on 24 January 2024 at 9:12 am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shi’a Muslim in Sunni majority country – active and well-known member of community – harassment and threats by extremist group, continuing during return visits, and police inaction – employment in third country until anti-Shi’a hostility there – two community members killed – activities in home country and Australia – refusal of previous skilled migration visa does not adversely affect credibility – fear of harm downplayed in mother’s visitor visa application – country information – recent deterioration of conditions – state protection limited and relocation not reasonable – members of family unit – children’s activities in Australia, but no application in own right – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (c), 36(2)(a), (b)(i), (2A), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (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 dependants.

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 Home Affairs on 28 February 2018 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 15 August 2017. [The applicant] (hereafter referred to as ‘the applicant’) applied as an applicant who is raising their own claims for protection. The other applicants, who are [the applicant]’s spouse and three sons ([Ages]) applied as members of [the applicant]’s family unit who are not raising their own claims for protection.

3. In his Protection visa application, the applicant indicated he was born on [Date] in Karachi, Sindh province, Pakistan. He indicated he is ethnic Muhajir, a Shi’a Muslim and was married on [Date] in Karachi. All family members indicated they departed Pakistan legally and arrived in Australia [in] August 2017, entering on Visitor visas.[1]

   [1] See the Departmental file.

4. In his application, the applicant indicated that he left Pakistan because he was an active and well-known member of the Shi’a Muslim community and faced harassment and life threats from the Sunni terrorist group Lashkar-e-Jhangvi (LeJ).[2]

   [2] See the Departmental file.

5. The Delegate refused to grant the visa, expressing concerns regarding the applicant’s credibility due to ‘conflicting information’ regarding his employment, his having returned to Pakistan when claiming to fear harm there, his living arrangements in Pakistan and his ‘intentional omission’ of some personal/family information in his application (that he had been married previously). The delegate found that ‘even if there is a real chance of persecution’ in Karachi, the real chance does not exist in all areas of Pakistan. In relation to the complementary protection criterion, the delegate found that it would reasonable, in the sense of practicable, for the applicant to relocate to, for example, Islamabad or Lahore, where the delegate considered there was not more than a remote chance that he would suffer significant harm.

6. The applicant sought review of this decision on 5 March 2018. He provided the Tribunal with a copy of the delegate’s decision record.

7. The applicant and his spouse appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

8. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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

15. The applicant’s written claims for protection, as set out in his Protection visa application,[3]  are summarised as follows:

    [3] See the Departmental file.

    ·He left Pakistan at the start of 2008 due to life threats.

    ·He was an active member of the Shi’a Muslim community and well known.

    ·Initially he left Pakistan by himself and tried to keep visiting family but was again threatened on several occasions while visiting family.

    ·When he returned to Pakistan on vacation in December 2014 he was targeted at his doorstep. They snatched jewellery, cash and a mobile phone and pointed a gun at his youngest son, who was only [Age] years old.

    ·He changed his employment to achieve family status and brought his family to [Country 1]. It was better until 2015 then things became very hostile there for Shi’a Muslims. He faced harassment at every level and he and his family became very stressed. Visas were not renewed for expats with Shi’a names like Syed, Ali, Jaffer, Haider and Fatima and they were thrown out due to their religion. He began to worry about having to go back to Pakistan where he would face those threats again and where killing of Shi’as is very normal. He had three young boys to raise.

    ·He did not seek help because he does not have any trust in the authorities and system. It is very normal that people are easily killed or targeted in Pakistan due to their faith. The local police do not even make an incident report for Shi’a killings. When he tried to lodge a complaint he was told to go somewhere else to hide because they cannot protect every single Shi’a.

    ·He can’t hide his identity as his name is a typical Shi’a name. As they knew where he lived he did not even feel safe in his home.

    ·If he returned to Pakistan he would be attacked and killed. He has been chased while visiting his family. Sometimes he cut short his trips back to Pakistan to avoid harm. He even had problems when he attended his father’s funeral.

    ·He has been pointed out by people who are working for terrorist groups in ‘[Neighbourhood 1]’ (the area where his family lives in Karachi). Their office is located near his home. He is sure they will not only attack him but his family would also be affected.

    ·He cannot relocate as the whole country is affected and wherever he went he would face the same situation. His name shows he is a Shi’a and some people will not let a house for rent to a Shi’a.

16. The applicant expanded on his claims in a statement submitted to the Department on 6 December 2017.[4] Relevant additional matters raised in this statement are as follows:

    ·In the month of November 2006 he was at home with his family when someone threw a letter at his door step with couple of bullets pasted on it and written "tum apneeharkatoon say baaz nahi ayoo gaa tumara hul serif yaheehai" ("YOU ARE NOT LEAVING YOUR ACTIVITIES WE WILL KILL YOU"). His parents and family got shocked and under severe fear. The life threat calls and unknown people movement in his street was continuous from October 2006. He along with his neighbouring friend went to the Police Station to file a report and showed the same letter to the SHO (Station House Officer). The SHO stated that plenty of people come every day with the same story. He added that "you should think that if some one make fun with you". The SHO did not take it seriously and only entered the complaint in the daily register and did not even file an FIR. They took it very seriously and his father told him to move immediately to his sister’s house, because one week before two brothers belonging to their cast who came from Islamabad were assassinated in their home by Lashkar-e-Jhangvi killers, in their area.

    ·His parents were very disturbed because these types of incidents were occurring on a daily basis all over Karachi. As he is the eldest son his parents do not want to lose him. At their demand he went to his sister's house and stayed there until the situation cooled down. [In] January 2007 he came back to his home but the harassing calls were still coming, even though he was not attending his part-time [job]. He realized the situation was getting worse day by day. It is not controllable in his area especially, because the Headquarters of Lashkar-e-Jhangvi (named ‘[Madrassa name]’) is [near] his street and he was pointed out as his home was the only Shi’a house in the whole street.

    ·His parents forced him to go abroad so he decided to apply for immigration to Australia. He collected all his documents, his experiences letter and training letters, and searched for a consultant to apply for immigration to Australia. In mid-January he submitted his case to a consultant to file for Immigration to Australia from his sister's house.

    ·He limited going out and meeting people, except for majlis (a meeting/gathering, including for mourning) and jaloos (processions), and waited for his migration result. It was like self-imposed house arrest. Due to the delay he was unable to normalise his life for one year. To get rid of the fear he arranged to move to [Country 1]. After six months his father died. He planned to return for 20 days to be with his mother and family but the scenario was the same - the unknown calls and unknown people sitting in front of his door to harass him disturbed his home. His mother asked him to leave immediately so he returned to [Country 1]. Later he sponsored his family and mother to stay with him but his mother did not want to leave her house.

    ·After a big span of time he was thinking the situation had improved, so in December 2014 he took his annual leave but after a week he returned to [Country 1]. He realized that they will kill him and harm his family. They tried to kill his son who was only [Age] years old. They snatched their belongings from his wife to harm him at his door step. He packed up and took his family back to [Country 1].

    ·Until August 2016 it was calm and better in [Country 1]. His wife was running a small business and he was doing his job. However, as the regional political scenario got worse day by day for Shi’a Muslims, the expatriates who are Shi’a were thrown out of the country if their religious activities were in their records. His [company] informed him that when his inquiry from the Immigration Department arrives he has to sign it. He was closely observing other companies where Shi’a employees were being sent back to their home country, as his visa renewal date was coming closer and he did not want to go back to Pakistan. He tried to move out to another country. He first applied to move to [Country 2]. He got the visa but could not move there because of some reasons. After that, he planned to move to Australia to protect his life and his family.

    [4] See the Departmental file.

17. The representative made a legal submission in support of the review application on 11 July 2023.[5] In this submission, the representative provided some additional background information on the applicant that had not been raised in his previous statements. This is summarised as follows:

    ·The applicant commenced his religious service for the Shi’a community as a young boy and continued his activities in adulthood, actively participating in all manner of functions whether it be mourning or happy celebrations.

    ·During their residence in Pakistan, the applicant was known for organising mourning gatherings twice during the month of Moharram every year at their residence – making him well-known among locals, as well as many other faith-based activities which gave him significant notoriety.

    ·As he grew in faith, the applicant’s level of service increased. He became involved in the committee responsible for the only procession of mourning in the area (called ‘[Neighbourhood 1]’) where he lived. He was also responsible for organising weekly programs at different neighbouring homes on Thursday evenings and Friday mornings, birth celebrations of Imams and mourning programs of Martyred Imams.

    ·The applicant’s best friends, [Dr A] of [named clinic] and ‘[Mr B]’ were killed in two separate attacks following a 1989 attack on a [Madrassa], which he believes was undertaken to counter peaceful gatherings and programs.

    [5] See the Tribunal file.

18. The representative cited country information from UNHCR’s 2017 report on Pakistan, the UN Committee Against Torture’s June 2017 report on Pakistan and DFAT’s current Country Information Report on Pakistan, in relation to the targeting of Shi’a Muslim’s by Sunni Muslim extremist groups and concerns that the Pakistan government has failed to protect Shi’a Muslims from these attacks. He also cites a statement by the American Muslim Bar Association (AMBA) in October 2020 denouncing ‘…the persecution and state-sanctioned violence perpetrated against Pakistani Shi’a Muslims…’ and calling on ‘…the Pakistani government to cease all human rights violations and state-sanctioned oppression against them’.

19. The representative refers to the impact of a sectarian bill introduced into the Punjab Assembly in August 2020 as having incited ‘unrelenting violence against Shi’a Muslims across Pakistan’, including in Karachi. He also refers to the dramatic increase in blasphemy cases filed in Pakistan, 70 per cent of which have been made against Shi’a Muslims.

20. The representative drew the Tribunal’s attention to six previous decisions where the Tribunal had found that an applicant would be targeted in Pakistan for serious harm because of their Shi’a religion and conceded that there is a lack of state protection against systematic attacks against Shi’a Muslims.

21. The representative is critical of the delegate’s decision focusing on issues arising from the applicant’s previous skilled migration application (which was refused on the basis of an adverse outcome in relation to an employer check) and the applicant’s reluctance to disclose at interview why he did not travel to [Country 2] after being granted a visa to visit that country, where his ex-wife was residing. In his submission the representative comments that the applicant instructs this information was not disclosed due to complex family dynamics at the time. This was because the applicant’s ex-wife lives in [Country 2] with her new husband and newly adopted daughter. The applicant feared that his current wife would assume that the newly adopted daughter was his biological daughter, ‘subsequently causing a myriad of issues’.

22. The representative is also critical of the delegate for not giving any weight to supporting documents submitted by the applicant with his application (relating to his education and employment), because of DFAT’s advice regarding the prevalence of document fraud in Pakistan. The representative asserts that the approach taken by the delegate is ‘grossly over-stringent’.

23. The representative refutes the delegate’s suggestion that the applicant could relocate to Lahore or Islamabad, noting that Shi’as are still targeted in Punjab province both due to their religion and their race. In this regard it is noted that the applicant is not ethnic Punjabi but is a Muhajir, a group which originated from India. It is submitted that his name, and that he speaks Urdu (rather than Punjabi) and with a distinct accent makes him easily identifiable anywhere in Pakistan.

24. The representative also advised that the applicant’s mother is currently in Australia and ‘is seeking refugee (sic) for the similar reasons aforementioned’.

25. On 20 July 2023, the representative made a further submission comprising additional country information including in relation to forced disappearances, especially in Balochistan province; lack of state protection for ethnic Hazara Shi’a in east Quetta, Balochistan; and the bombing of a Shi’a mosque in Peshawar, the capital of Khyber Pakhtunkhwa province, in March 2022.

26. On 26 July 2023, a reference was submitted from [Mr C], Imam and religious scholar from [Organisation 1], regarding the religious activities of the applicant and his family in Australia.

1. On 3 October 2023, the representative made a further submission, comprising copies of 8 photographs and links to two [Online] accounts to highlight that the applicant and his family are actively practising their Shi’a faith in Australia. The [Online] links are to the personal accounts of the applicant’s sons and mainly focus on them discussing their Shi’a faith and singing songs about their faith.

   Evidence from the hearing

2. At the hearing, the Tribunal asked the applicant and his spouse what family they now have living in Australia, in Pakistan or elsewhere. The applicant indicated that his younger brother lives in Australia, having come here in 2010 and gaining permanent residence as a skilled migrant. He indicated his mother is also in Australia currently, on a long-stay Visitor visa. He indicated that two of his sisters are residing in Pakistan, while one is living in [Country 1] and one is in [Country 3]. The applicant’s spouse indicated her sister has permanent residence in Australia; her two brothers came to Australia on Student visas; and her parents are also in Australia. She said her parents have visas that enable them to stay in Australia for a year at a time but then have to return for six months. She said she has no family members remaining in Pakistan.

3. When asked about their educational qualifications, the applicant confirmed he has a [Degree] from [University]. He said he focused on [Subjects] in his studies. The applicant’s spouse indicated she completed up to year 12 of high school in Pakistan and then completed a [Diploma]. She said she has undertaken a [Certificate III] in Australia and worked in that area for 6 months, but now is caring full-time for their three sons.

4. In relation to work, the applicant said in Pakistan he worked from 2004 in a [workplace 1] as [an Occupation 1]. He indicated that in the evenings he also worked in a [workplace 2] as [an Occupation 2]. He indicated that he worked for [Mr D], who was the person contacted by the Department in relation to his application for skilled migration. When queried about this, he said he started working at the [workplace 2] as a ‘helper’ in his gap year between school and university. He indicated that, when he started university, the owner said he could come and work there after he had finished attending university for the day, so he began working at the [workplace 2] in the evenings. He commented that, after he completed his degree, he got a job with [Employer 1] as [an Occupation 3] (from 1995-2003). He said he found it very easy to schedule his work so that he had [his tasks] by 12 noon-12:30 so he would then go and work in the [workplace 2]. He said he undertook a two-year apprenticeship with the [workplace 2] to obtain the necessary skills.

5. The applicant’s spouse indicated that she did not work while in Pakistan but did run a business selling [Products] from 2013-2017 while the family was living in [Country 1]. She indicated that she did this at the suggestion of her husband ‘to keep busy’. She commented that her husband did a lot of the work for the business as well but she managed the business.

6. The applicant indicated that, in [Country 1], he initially worked for a [workplace 1] in [Occupation 4]. He indicated that, from 2009-17, he worked for [Employer 2] as [an Occupation 5]. The applicant indicated that in Australia he is working as [an Occupation 6].

7. The Tribunal asked the applicant to tell it about his activities with the Shi’a Muslim community in Pakistan and how he became well known. He commented that, in the vicinity of his family home in Karachi, there were approximately 150 Shi’a homes. As stated in the representative’s submission of 11 July 2023, the applicant commented that ‘we’ were responsible for arranging Dua e Kumail and Dua e Nudba, different majlis (religious congregation) activities at different community members’ homes. He indicated ‘we’ would also host two majlis in his family home, on the 5^th day of Moharram and the 24^th day of Moharram every year. He said he also was quite heavily involved in organising the local religious procession which would go from the Imambargah (where they congregate and have majlis/undertake mourning) and end at the [named mosque] (which he said is the name of the Shi’a mosque he attended for daily and Friday prayers). When asked, he indicated these places were less than [number] minutes’ walk from his family home. He said he would inform the local police SHO (Station House Officer) of the proposed route for the procession.

8. The Tribunal asked the applicant who the ‘we’ were he was referring to. He said there was a team of people, including himself, responsible for these matters. He commented that two of his companions had already been targeted and martyred by militants and the rest have been ‘scattered’. When asked what he meant by ‘scattered’, he said they have gone abroad. When asked who his companions were, he said they were [Dr A] and [Mr B]. The Tribunal noted that these people were mentioned in the representatives submission of 11 July 2023 but the applicant had not referred to them in the statement of claims in his Protection visa application or in his further statement of 6 December 2017. The Tribunal asked the applicant why that was the case. He said these events occurred in the early 1990s and he came to Australia in 2017, so initially he had only mentioned the more recent matters.

9. The Tribunal commented that the representative’s submission also indicated that his mother had sought refugee status in Australia. The applicant said that is not the case. The representative interjected, commenting that the applicant’s mother has sought ‘temporary refuge’ in Australia by way of a Visitor visa.

10. The Tribunal asked the applicant to tell it about what happened in the lead-up to the issues he indicated he faced from October 2006 (where he stated he began to receive ‘life threat calls’ and see unknown people in his street). The applicant said the family was living in [Sector] of Karachi, which is known as ‘[Neighbourhood 1]’ (he commented that it had once been vacant land between two residential areas). He said they moved there in [Year] when he was a schoolboy because his father decided to buy a house in a new housing development there. He indicated there were [Number] houses in his street ([Number] on each side) and his family was the only Shi’a family living in the street. When asked why his father decided to buy a house there, rather than in an area where more Shi’as lived, the applicant said his father worked in the [Employer 3] and all the new houses were purchased by [those employees] (who with the exception of his father were Sunni Muslims) and who were friends of his father. He said there was a Sunni Madrassa (religious school) nearby called [Madrassa name] which at the time was very peaceful. He added that he even went to that Madrassa when he was a boy to study the Quran. He indicated that things changed in 1989, however, when militants attacked the Madrassa with a hand grenade. He commented that, after the attack, the administration changed and the Madrassa was occupied by Lashkar-e-Jhangvi (LeJ) people. He commented that LeJ was founded in Jhang in Punjab province and the neighbouring Madrassa became the headquarters of their branch in Sindh province.

11. The applicant stated that, after LeJ gained control of the Madrassa they would try to disturb and disrupt any majlis that the local Shi’a community sough to undertake. For example, he said LeJ supporters would remove the mufflers from their motorcycles and ride around making noise to disturb the congregation. He said Shi’a elders asked them to stop doing this but they did not stop and instead threatened them. The applicant said he then took the initiative to make a formal complaint at the local police station. He said they would meet in [Dr A]’s clinic to discuss such matters and [Dr A] would lead the discussions. He said, as a consequence, [Dr A]’s clinic was targeted by the militants and then, one day, [Dr A] was assassinated. He added that, the following week, he heard that [Mr B] had also been killed. The applicant said, after that, his father moved him to the cantonment area in Karachi with a paternal aunt where he stayed for 2-3 months.

12. The applicant commented that, when he returned home, he and two others attempted to resume the community’s religious activities but, whatever they tried to do, something would happen to disrupt their activities. He said they tried to negotiate in a peaceful manner with those who were raising objections but were ignored. He said they received threatening phone calls and people would come into the street on motorcycles making a lot of noise to threaten them. The applicant commented that the elders came together and decided to put barricades at both ends of the street so they could have a guard check the identity of and control the movement of people ‘not known’ to them into the street. When asked, he indicated that similar measures where taken in some, but not all other streets (especially where there were more Shi’a residents), depending on the views of the residents at the time. He commented that things cooled-down for a time but indicated that tensions could escalate at short notice, adding that they could temporarily relocate if tensions escalated too much and then return and seek to resume their activities.

13. The applicant said he went on a pilgrimage to [Country 4] in 2006 and this was a trigger for him getting threatening phone calls because there were (false) rumours that he had done some sort of training while he was in [Country 4]. He indicated the callers said they ‘would not leave him alone’. He said he also noticed unidentified people were coming into the street. The Tribunal asked how this could occur given the security measures he indicated had been put in place. The applicant said the next generation living in the Sunni houses were attending the Madrassa and becoming connected to the people there, and their friends were coming to visit them. The applicant commented that the people knew when he would be at home between his day job and working at the [workplace 2] in the evenings and the calls would come during that period. He said in November 2006 the situation escalated when his father found a threat letter with two bullets pasted on it which had been thrown into their property.

14. The applicant indicated that, at his father’s insistence, he went to the local police station with two local elders but the SHO did not take the matter seriously, suggesting it was a normal daily occurrence and he would not write up an FIR (First Information Report) due to the volume of such complaints.

15. The applicant said his father advised him he should seek to leave Pakistan. He said he went to stay at his sister’s home in ‘[Neighbourhood 2]’ and sought an agent’s assistance to help him lodge a skilled migration application for Australia as [an Occupation 2] (ASCO [Code]) based on his employment at [Mr D]’s [workplace 2]. He indicated he was told by his agent that the process would take about 6 months but it went well beyond that time. Consequently, he decided to go to [Country 1] as the accommodation in [Neighbourhood 2] was only meant to be for employees of the [workplace 3].

16. The applicant indicated that initially he was on a short stay visitor visa but he was able to get employment in [Country 1] as [an Occupation 4] for a [workplace 1]. He was then able to get a 2 year work visa but was required to exit [Country 1] to renew the visa. The applicant said he would return to Pakistan to do this but would stay at his sister’s home in [Neighbourhood 2].

17. The applicant indicated that, six months after he secured the job with the [workplace 1], his father suffered a heart attack and passed away in November 2008. He explained that, as the eldest son, he had was responsible for receiving all condolences personally. He said news spread that he had returned to Pakistan and he again received threats. He commented that community elders instructed him to return to [Country 1], adding that, while he had taken 20 days’ leave, he went to his sister’s home and returned to [Country 1] after one week.

18. The applicant advised that his mother also has cardiac problems and he returned to Pakistan to see her while she was undergoing treatment. He indicated that he would ask her to go to his sister’s home and would see her there or would stay at the hospital where she was receiving treatment.

19. The applicant indicated that, in 2009, he gained employment [at] the [Employer 2] and was able to secure a family visa that enabled him to bring his wife and children to [Country 1]. He commented that, in 2012, he returned to Pakistan for one month to visit his mother, but found the situation was the same.

20. The applicant said that, in December 2014 he was planning to visit Pakistan with his family for 30 calendar days, but had to cut this visit to one week because of an incident at the family home. He said he was inside the house when he heard shouting and a shot. He said when he tried to go outside to see what was happening his wife, who was crying, grabbed him and pushed him back inside. He said his wife later told him that two men had come, grabbed their [Age] year old son and pointed a gun at him. The men had demanded to know where the applicant was and that he be brought out. His wife told him she initially thought the men were child ‘snatchers’ and gave them her jewellery and mobile phone. When all the local residents came out of their homes, the men dropped his son, fired in the air and fled the scene.

21. The applicant commented that, when he came out of the house, people blamed him for returning to Pakistan. He said the elders asked him why he had come to Pakistan and told him to go back to [Country 1]. He said he took his family to his sister’s home and left for [Country 1] on the first available flight.

22. The Tribunal asked why, if these men were motivated to get him, they did not push their way inside the house. The applicant said people who enter the house can easily be trapped so they try to avoid that. When asked how these people were able to enter the street and why the security personal did not respond, given the security measures he had told the Tribunal had been put in place, the applicant said people can enter the street once security have ‘surveiled’ them and people who have contacts or are friends with the local boys in the street are allowed to enter. He added that some local youth now frequent the radicalised Madrassa as he had explained previously.

23. The Tribunal asked the applicant if his mother was at the house at the time of this incident. He said she was. When asked if she witnessed what happened, he said she did not but added that she was inside and was informed of what had happened.

24. The Tribunal asked the applicant why the family did not move away from that location given its proximity to the [Madrassa name] and noting his sister did not seem to be experiencing problems living in [Neighbourhood 2]. The applicant commented that it was his father’s house and now is in his mother’s name and it served as the ‘base-camp’ for the family (he said his siblings used to stay there when they returned to Pakistan). He said his mother is now renting-out the home and spends one year at a time in Australia, returning to Pakistan for two months, during which time she stays with his sister in [Neighbourhood 2]. He said there are now two tenants living in the family home, both of whom are Sunni Muslim.

25. Noting that the delegate had detailed in her decision record that he had returned to Pakistan on 9 occasions between March 2008 and December 2014, the Tribunal asked the applicant why he returned to Pakistan so regularly after he went to [Country 1] in 2008 if he thought his life was at risk there. The applicant commented indicating that, as the eldest son, he has obligations to his mother, particularly after his father passed away in November 2008. He commented that he mostly stayed with his sister in [Neighbourhood 2], which he said is close to the airport, and his mother would go there. He said he would return while she was having treatment for her heart condition and would sometimes go directly to the hospital and stay there for two or more days.

26. The Tribunal asked the applicant why he did not travel to [Country 2] and seek protection there when he obtained [a Country 2] Visitor visa in 2017. The applicant said he applied for the [Country 2] visa due to the deterioration in the situation for Shi’as in [Country 1]. He indicated that the Human Resources (HR) area where he worked had advised him that there was pending bad news because he had come to the attention of the immigration authorities. He said this was because he was travelling to [named region] but living in [another region] and his car had [that region’s] number plates. He indicated that there was intense focus on the activities of and suspicion of Shi’as in [Country 1] due to Sunni-Shi’a conflicts in Yemen and Bahrain. He said when he was asked to train a new [Occupation 5] for 3 months he feared that he was training his successor. He recounted how he had witnessed other Shi’as who one day found they could not gain access at the main gate. He said these people were sent directly to HR and arrangements were made for them to depart [Country 1] immediately, without them having the chance to settle their affairs or gather their belongings, and while their wives and children were still in the country. He said his wife, who was pregnant at the time, was very distressed at the possibly this could happen to them.

27. The applicant said his plan was to go to [Country 2] (where his ex-wife lives with her new husband) and see what the situation was like there. He indicated that just before he was to go his wife had a [medical incident] so he could not leave her. He said he decided to come to Australia where his wife’s sister and his brother were living. He indicated that he and his family did not return to Pakistan after December 2014 and travelled directly from [Country 1] to Australia, arriving [in] August 2017 (his passport confirms he departed [Country] on [Date 1] July 2017 rather than [Date 2] July 2017 as indicated on page 11 of the delegate’s decision record).

28. At the hearing, the Tribunal put the following information to the applicant for comment and/or response, in accordance with the requirements of s 424AA of the Act:

    Your mother applied for a Visitor visa on 23 August 2018. This was refused by the Department of Home Affairs. Your brother [sought] review of the Department’s decision. He participated in a hearing with the AAT on 16 March 2020 by telephone. Your mother also gave evidence at that hearing.

    The AAT Member’s decision record of 16 March 2020 indicates that:

    ·Your brother stated that his older brother (you), who had applied for protection, had resided in his mother’s house in Karachi prior to leaving Pakistan. In his claims the review applicant’s brother (you) had indicated there were issues of danger to himself and his family in that home. Your brother stated that his mother’s home is not a place of danger, and that his mother would not seek protection because she felt unsafe in her home.

    ·Your brother also gave evidence that he had travelled to Karachi with his wife and three young children, and stayed with your mother in her home in January 2019. The member commented that this indicated to her that the home of the visa applicant (your mother) is safe, and not a place deemed by the family to be dangerous or to be avoided.

    ·Your mother stated that she did not know any of the reasons why her older son (you) had applied for protection or the basis of the claims as to why you stated you did not feel safe in Pakistan. She stated she had no knowledge of the reasons why you had applied for protection.

29. The Tribunal indicated to the applicant that it considers this information is relevant to the review because it seems to contradict his claim that in the past he faced a risk of harm in the family home in Karachi and that he would not be safe if he returned to the family home in Karachi. The Tribunal further indicated that, depending on the applicant’s response or comments, the information may lead the Tribunal to conclude that the incidents he claims occurred at his family home in Karachi did not occur, and ultimately would be the reason, or a part of the reason, for affirming the decision that is under review.

1. The applicant indicated that he understood why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review. He indicated that he wished to comment immediately and did not need additional time to comment on or respond to the information.

2. The applicant reiterated that the family home is a ‘base’ house which family members have used when they return to Pakistan. He said initially his mother had kept a portion of the house vacant for this purpose but has now rented all of the house. Consequently, if family members return to Pakistan now they stay at his sister’s home.

3. He commented that his brother’s most recent visit to Pakistan was restricted to going there and bringing their mother back. He added that his brother took his whole family but that was for the wedding of the daughter of his sister, who lives in [Neighbourhood 2].

4. He said his mother is now [Age range] years old (he indicated in his application that she was born on [Date] so she would be [Age]). He commented that, maybe due to her old age, she was not able to remember what had occurred. He reiterated that she had been inside the house at the time of the claimed incident in December 2014 and was told by others what happened.

5. In relation to his brother’s comments, the applicant said his brother was not very active religiously when he was in Pakistan and therefore was not at risk of harm from militants there. He added that the danger was due to him and therefore the fear was less for his brother and his brother’s family. Later in the hearing, the applicant said he does not know why his brother said the family home was safe and speculated that maybe it is only safe if he is not there. He reiterated that community elders told him to leave the country.

6. The Tribunal commented that migration law requires that, if there is a real chance that a person would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act, the real chance of persecution must relate to all areas of the country. The Tribunal observed that a significant part of the risk he claims to face appears to be because of the proximity of his family home in [Neighbourhood 1] area of Karachi to the [Madrassa name] and the LeJ branch office that operates from that location.

7. In response, the applicant stated that he would not be safe if he relocated within Pakistan because his names, particularly ‘[Name 1]’ and ‘[Name 2]’, readily identify him as a Shi’a. He commented that LeJ originated in Jhang in Punjab province and that is where it is headquartered. He said Punjab is controlled by LeJ and Sipah-e-Sehaba (a banned Sunni Islamist organisation),[6] they have a list of those ‘they sent to hell’ and he fears he could be identified by them. He said he can’t speak Punjabi or Sindhi, only Urdu, which would bring him to attention. He also said that if the family tried to move he would have to show his identity card to prospective landlords to rent a house and this would identify him as a Shi’a (because of his name). He said people leasing houses also often seek an undertaking that no religious activities would be undertaken at the property.

   [6] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.90.

8. The applicant also commented that he has to protect his three sons, who are Shi’a reciters.

9. In an oral submission at the end of the hearing, the representative drew the Tribunal’s attention to the comparative table of terrorist attacks and fatalities on page 14 of the current DFAT Country Information Report. He commented that, while the table shows a trend of decreasing incidents since 2013, there was a slight rise in 2021 (the last year reported as the report was issued in January 2022) when there were 200 attacks and 293 fatalities. The representative commented that data for the first 9 months of 2023 indicates there have been over 700 fatalities, which is a 19% increase over 2022. He said this shows there is now an upward trend in attacks and fatalities rather than a decrease. He added that, most recently, 50 people were killed in a suicide bomb attack.

10. The representative commented on the adverse information put to the applicant under           s 424AA. He asserted that the information is not inconsistent with the applicant’s claims but can be seen to align with the perspectives of the people commenting. The representative said the applicant is in danger wherever he is but the house is a safe place when the applicant is not there. He also cautioned that the applicant’s mother’s advanced age and the fact that she was not a witness to the claimed incident needed to be taken into account when considering what she had said.

11. The representative also commented that the most recent submission shows that the applicant’s sons are Shi’a reciters with their own [Online accounts], which raises the level of risk the family faces. He commented that they would continue to do this if returned to Pakistan and therefore would be targets for harm.

    Findings and reasons

    Applicant’s identity

12. On the basis of the copies of the applicants’ Pakistani passports provided to the Department,[7] 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

    [7] See the Departmental file.

13. The issues in this review are whether the applicant has 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 him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.

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

    Credibility

15. 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.

16. 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.

17. 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.

18. 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).

19. 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

20. The Tribunal accepts that the applicant is a [Age] year old ethnic Muhajir man from Karachi, Pakistan who is of the Shi’a Muslim faith.

21. DFAT indicates that Muhajirs, who are Urdu speaking Muslim migrants from India and their descendants, comprise 7.6 per cent the population of Pakistan, which, according to the 2017 census was 207.7 million at that time (with an annual growth rate of 2.4 per cent). According to the 2017 census, Muslims comprise 96.47 per cent of the population. It is estimated that 80-90 per cent of these are Sunnis and 10-20 per cent are Shi’a, that is, there are an estimated 20-40 million Shi’a living in Pakistan. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad.[8]

    [8] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.5, 3.1, 3.28, 3.55 and 3.76.

22. The applicant came to Australia with his second wife and three children on Visitor visas, arriving [in] August 2017 from [Country 1], where the family had been living since 2010.

23. The applicant claims he was targeted for serious harm while he was living in Karachi by members and supporters of LeJ. DFAT describes LeJ as being among various anti-Shi’a sectarian groups that operate in Pakistan. DFAT indicates LeJ is a radical Sunni militant group that follows the Deobandi school of Islam and seeks to eradicate Shi’a influence from Pakistan. DFAT comments that the group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against ethnic Hazara Shi’as), 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.[9]

    Claim to have been targeted for harm by LeJ

    [9] DFAT Country Information Report, Pakistan, 25 January 2022, section 2.41.

24. The Tribunal found plausible and accepts the applicant’s evidence that the previously peaceful Sunni [Madrassa name], located near his family home in Karachi and which he had previously attended as a boy to study the Quran, was attacked and taken over by LeJ militants in 1989, when the applicant would have been [Age]. The Tribunal accepts that it subsequently became the local headquarters for LeJ.

25. The Tribunal accepts that the applicant, as the well-educated and eldest son of a reasonably well-off father, who worked for [Employer 3], was an active member of the local Shi’a community who was involved in organising religious activities for the local community, including Majlis (religious congregations) and the Shi’a religious procession which took place each year during Moharram.

26. The Tribunal accepts the applicant’s evidence that, following the arrival of LeJ in his neighbourhood, the relationship between elements of the Sunni community and the local Shi’a community changed, and the Shi’a community was subjected to harassment and intimidation by some Sunni’s at the instigation of LeJ, particularly when they held majlis or processions.

27. The Tribunal accepts the applicant’ evidence that two senior members of the local Shi’a community, [Dr A] and [Mr B], were targeted and killed by Sunni militants in the early 1990s. While the applicant referred to these people as his friends, the Tribunal notes he would have been in his [Age range] at the time of their deaths and considers they would more likely have been senior colleagues/associates. The Tribunal accepts the applicant’s evidence that after these killings, the applicant moved away to live with a paternal aunt for a few months.

28. The Tribunal accepts the applicant’s evidence that, when he returned to the family home and he and others sought to resume the local Shi’a community’s religious activities, they faced ongoing threats and harassment from LeJ members and supporters.

29. The Tribunal accepts that, following him undertaking a pilgrimage to visit Shi’a religious sites in [Country 4] in 2006, the applicant began to receive targeted threatening phone calls in October 2006. The Tribunal consider it plausible that this was because of false rumours being spread that he had undertaken some sort of training while he was in [Country 4]. The Tribunal accepts that his father advised him that he should leave Pakistan after a threat letter addressed to the applicant with two bullets pasted onto it was thrown into the family property.

30. The Tribunal accepts that this was the catalyst for the applicant moving to live with his sister in [Neighbourhood 2] while he sought to migrate to Australia as a skilled migrant. The Tribunal found the applicant’s oral evidence regarding his apprenticeship/work at [Mr D]’s [workplace 2] to be plausible and, given his advice that [Mr D] is illiterate and operated without paperwork, does not consider the refusal of his skilled migration visa application reflects adversely on the applicant’s credibility.

31. The Tribunal accepts that the delay in finalising the outcome of the applicant’s skilled migration visa application and the subsequent refusal of the application was the reason why the applicant decided to seek work in [Country 1] in early 2008.

32. The Tribunal notes that the applicant’s visa status in Pakistan was such that, initially, he was not able to take his wife and family there and he had to return to Pakistan on a regular basis to renew his visa. The Tribunal accepts that he returned to Pakistan on a number of occasions but accepts his evidence that he often stayed with his sister in [Neighbourhood 2].

33. The applicant returned to Pakistan in November 2008 when his father passed away. The Tribunal accepts the applicant’s evidence that, as the eldest son, he had certain responsibilities in terms of receiving mourners and accepting condolences at the family home. The Tribunal accepts that the applicant had taken 20 days’ leave and intended to stay in Pakistan for four weeks but once news spread that he had returned to Pakistan in relation to his father’s death, he again received threats so moved to his sister’s home and then departed Pakistan and returned to [Country 1] as soon as he could, after only a week.

34. The Tribunal accepts that, after this time, the applicant continued to return to Pakistan on occasions, because his mother has cardiac problems and he wished to see her and support her while she was undergoing treatment. The Tribunal accepts that he was cautious while doing this and would often stay at his sister’s home or at the treating hospital.

35. The Tribunal accepts that the applicant was able to secure employment in [Country 1] in 2010 which enabled him to move his family there. The Tribunal accepts his evidence that he asked his mother to join his family in [Country 1] but she declined because she wished to remain living in the family home in Karachi.

36. The Tribunal accepts that the applicant, hoping that the situation in Pakistan had improved, decided to return with his family in December 2014 for a one month vacation and planned to stay with his mother in the family home over that period. The Tribunal accepts the applicant’s evidence that there was an incident at the family home where his wife and youngest son were accosted by two armed men on the doorstep of the family home, who grabbed his [Age] year old son, fired a shot in the air and demanded that the applicant come out. The Tribunal accepts that, as a consequence of this traumatic incident, the applicant and his family went to his sister’s home and then departed Pakistan on the first available flight. The Tribunal notes that the applicant and his family members have not returned to Pakistan since that time, having travelled directly from [Country 1] to Australia [in] July 2017, over two and a half years later.

37. The Tribunal also accepts that the applicant sought to leave [Country 1] in 2017 because of rising government focus on and distrust of Shi’as living in [Country 1] due to Sunni-Shi’a conflicts in Yemen and Bahrain. The Tribunal accepts that the applicant was fearful that his employment could be terminated at any time and he would be forced to return to Pakistan at very short or no notice. In this regard, the Tribunal found plausible the applicant’s explanation for why he did not travel to [Country 2] (where his first wife lives with her new husband) after having obtained a visa to travel there (because his wife had a [medical incident]). The Tribunal also accepts that these are sensitive issues for the applicant and his current spouse.

38. In relation to the adverse information put to the applicant at hearing in accordance with the requirements of s 424AA of the Act, the Tribunal accepts the applicant’s evidence that the family home was not a place of risk for either his mother or his brother because they were not active in the Shi’a community in the way he was. The Tribunal also accepts the representative’s comments regarding the age of the applicant’s mother and the fact that she was not a witness to the incident in question. The Tribunal also considers that the context in which the evidence was given needs to be taken into consideration. The applicant’s brother and his mother were seeking to secure a Visitor visa for his mother, so it was in both their interests to downplay any suggestion that she was at risk of harm in the family home, so that she would not be denied the visa on the basis that she had an incentive not to return to Pakistan. For these reasons, the Tribunal has not given weight to this evidence.

39. Having carefully considered the available evidence, the Tribunal accepts that, should the applicant return to his family home in Karachi now or in the foreseeable future, there is a real chance he will face persecution involving serious harm from LeJ members and/or supporters. The Tribunal finds that the applicant’s Shi’a faith is the essential and significant reason for the harm and that the persecutory conduct feared by the applicant is systematic and discriminatory.

    Real chance of harm must relate to all areas of the receiving country

40. 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.

41. In its current Country Information Report, DFAT comments that, following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021.[10] Causes of insecurity include religious extremism and sectarian hatred.

    [10] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.34, 3.31-3.37, 3.55-3.61.

42. 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. Multiple interlocutors told DFAT 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.

43. 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.

1. 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).

100.   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.

101.   Shi’a have historically been targeted by sectarian terrorist groups such as the Tehreek-e-Taliban Pakistan (TTP), LeJ and Islamic State (IS). These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras) compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.

102.   DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a (Hazaras, Turis and Bangash) face specific, heightened risks.

103.   DFAT notes that most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and computerised national identity cards (CNICs) and passports do not distinguish between Sunni and Shi’a. Some Shi’a may, however, be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.

104.   As noted above, DFAT assesses that Shi’a in Pakistan 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 are areas in Pakistan where Shi’a are not at risk of harm. The Tribunal considers that the key issue in this case is whether, given the large size of the Shi’a community in Pakistan, and the applicant’s individual circumstances, there is a real risk he would face persecution involving serious harm wherever he lived in Pakistan.

105.   In considering this issue, the Tribunal finds that the applicant and his family are active in the practice of their Shi’a faith. The Tribunal finds that, while he was living in Pakistan, the applicant was active in organising majlis and processions for his local Shi’a community. The evidence before the Tribunal is that he and his family have continued to be active within the Shi’a community in Melbourne, including as members of [Organisation 2], a not-for-profit religious charity and welfare organisation and participating in religious activities and processions, and [Organisation 3], a Shi’a community centre in Melbourne. The applicant’s sons also have become Shi’a reciters who have their own [Online] site. The Tribunal considers that family members would continue to be active proponents of their Shi’a faith if they returned to Pakistan and this would increase the risk of harm they would face.

106.   The Tribunal also accepts the applicant’s evidence that his names readily identify him as a Shi’a which would allow him to be readily identified when seeking to move to a new community, including by those who are anti-Shi’a, as well as making it more difficult for him to obtain rental accommodation. The Tribunal also accepts the applicant’s evidence that many landlords will not allow renters to hold religious activities (such a majlis) in rental accommodation, and that doing this could bring him to adverse attention.

107.   In addition, the Tribunal finds that the applicant’s Muhajir ethnicity and the fact that he speaks accented Urdu but not Punjabi would also bring the applicant and his family to attention (as outsiders) if they sought to relocate to Punjab province.

108.   Considering the available evidence, the Tribunal concludes that the applicant faces a real chance of suffering persecution involving serious harm anywhere in Pakistan, because of his Shi’a faith and the active involvement of he and his family members in Shi’a faith based activities.

109.   The Tribunal finds, therefore, that there is a real chance the applicant would face persecution involving serious harm from anti-Shi’a groups such as LeJ, TTP and IS and their supporters due to his Shi’a faith, should he return to any part of Pakistan.

Availability of state protection

110.   In this case, the harm that the applicant fears is from non-state agents (LeJ, TTP and IS and their supporters).

111.   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.[11]  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.

[11] DFAT Country Information Report, Pakistan, 25 January 2022, sections 5.1-5.2 and 5.9-5.10.

112.   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.

113.   On the information before it, the Tribunal finds that the level of protection available to the applicant 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 applicant faces a real chance of persecution due to his Shi’a faith, should he return to Pakistan now or in the reasonably foreseeable future.

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

115. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a). However, the Tribunal is satisfied that the applicant’s wife and three sons are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depend on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

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

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

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

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.

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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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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