1814205 (Refugee) [2023] AATA 4470 (18 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER: 1814205
COUNTRY OF REFERENCE: Pakistan
MEMBER:Peter Vlahos
DATE:18 September 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 18th September 2023 at 9.45AM.
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – perceived adulterous relationship – religion – Shi’a – imputed political opinion – alleged infidelity – assaults and threats on family members – fear of honour killing – referral for Ministerial intervention – marriage to an Australian citizen – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 438, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMA [2003] FCAFC 65
SDAQ v MIMA (2003) 129 FCR 137
Selliah v MIMA [1999] FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj Sivalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 76Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 11 January 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a refugee as defined by section 5J(1) of the Act, nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there is a real risk the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 15 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background – Applicant’s migration and visa history
On 15 June 2015 the applicant applied for a Combined Partner (UF309/BC100)visa (offshore). On 10 November 2015 he applied for a Visitor (Sponsored Family Stream) (FA600) visa (offshore). On 11 January 2016 the Department refused the Visitor (Sponsored Family Stream)(FA600) visa (offshore). On 19 January 2016 a Merits-review was sought for the refused Visitor (Sponsored Family Stream)(FA600) visa application which was remitted back to the Department. On 19 October 2016 he was granted a Visitor(Sponsored Family Stream)(FA600) visa (offshore). [In] October 2016 he arrived in Australia. On 5 January 2017 the applicant’s Sponsorship was withdrawn for his Combined Partner (UF309/BC100) visa (offshore). On 11 January 2017 he applied for a Protection (XA866) visa; and was granted that visa’s Associated Bridging visa. On 29 January 2017 the applicant’s Visitor (Sponsored Family Stream)(FA600) visa ceased; and the bond was forfeited. On 1 May 2017 the applicant’s Combined Partner (UF309/BC100) visa (offshore) was refused.
Applicant’s identity and country of origins as claimed
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’)[1] and to the Tribunal, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. On the basis of this evidence, the Tribunal further accepts that the applicant’s identity is as claimed.
The Applicant’s Department file and information therein accessed by the Tribunal
[1] see, certified copy of Pakistan Passport ([number]) issued [in] 2015, expiry date [in] 2020, including biodata page and all visa pages within Passport: see, Department File [number] Folios [72-90].
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to the material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with his review application.
EVIDENCE AT THE HEARING
The applicant is [an age] year old male born in [District 1], Khyber Pakhtunkhwa, Pakistan. His race is Pashtun. His religion is Muslim Shi’a. He is married and has a child. His wife and child are Australian citizens.[2] His mother is deceased. His father resides in Pakistan. He has no siblings.
[2] see, AAT File copy of Applicant’s Marriage Certificate dated [in] May 2019 (Certificate [number]) and Victoria Australia Birth Certificate (Registration [number]) date of issue [date].
The applicant arrived in Australia [in] October 2016. He applied for a protection visa on 11 January 2017.
The applicant has not departed Australia since his arrival.
The applicant’s claims for Protection as submitted to the Department
The applicant’s claims for protection, including those raised at his protection visa interview with the delegate, and evidence provided by the applicant in support of his claims and contained in the Department’s file are as follows [in summary]:[3]
[3] Department of Home Affairs File no. [number].
§The applicant claims to fear harm in Pakistan from individuals of a Pashtun fundamentalist tribe on account of being caught holding the hands of the wife of one of these individuals;
§In October 2016, the woman, identified by the applicant as a [Ms A], stopped the applicant and told him that she loved him unconditionally and asked him to take her away from her husband;
§She stopped applicant at every opportunity she had to tell him that she loved him;
§The applicant tried to convince her that she needed to stop this because they were both married, and it put both their lives in danger;
§One day in October 2016 the applicant was returning home through a local market and a woman wearing a burqa called his name. After closer inspection of the person, the applicant realised it was [Ms A], who then took his hands and asked him to take her away from this hell;
§The applicant encouraged her to return to her home but her brother-in-law saw them holding hands, at which point the applicant tried to explain the situation but [Ms A’s] brother-in-law told the applicant he was dead;
§The applicant did not have a weapon on him and there were other people passing by, otherwise the applicant believes he would have been killed at that time;
§The applicant returned home and told his parents what had happened;
§At around 22:00, the applicant’s father called the applicant’s cousins and they arrived at his home, then took him to Islamabad, where he stayed for three nights at a friend’s place, given he knew he was already travelling to Australia;
§[Ms A’s] family came to his father’s home with guns and told him that they had buried [Ms A] alive and that they were leaving the neighbourhood but will be taking the applicant’s life;
§They [[Ms A’s] family] told his father that they will get the applicant and take his dirty soul out of his body;
§They slapped the applicant’s father multiple times but did not harm him further because in Pashtunwali culture it is against the code of conduct to kill older persons, women, and children in relation to revenge/honour killings;
§[Ms A’s] family since moved away from the area where this incident took place;
§[Ms A’s] family belong to a Sunni Islam community and are connected with the Taliban. As the applicant is of the Shi’a Islamic faith, they would not have any mercy on him and will kill him.
The Tribunal asked the applicant if there were any further claims, he would wish the Tribunal to consider but he advised that all his claims had been placed adequately before the Tribunal for it consideration.
What were the applicant’s fears that are preventing him from returning to Pakistan?
The applicant said that “they” (“Pashtun fundamentalist tribe”) were continuing with their “threats” and had told his father that if the applicant was to return to Pakistan, they would “kill him.”
The Tribunal asked the applicant – was his father receiving these threats in recent times? The applicant said that it was “still happening” and that his father was receiving “the threats” on his “mobile phone” which were calls which the phone recorded as “no-caller id”. The applicant also said that his father had “received the threats” “face to face”.
The Tribunal asked the applicant to explain – how did his involvement with ‘[Ms A]’ commence? The applicant explained that he (and his family) lived in the ‘same neighbourhood’ with [Ms A] and would exchange pleasantries on occasion but there was “no affection” or “association.” The applicant said that there was dealings between his family and [Ms A’s].
The Tribunal asked the applicant to explain – as to how he came to know about [Ms A’s] ‘family problems’? The applicant said that [Ms A’s] family problems became “known to him” because [Ms A] “told him” when “she met with him secretly.”
The Tribunal asked the applicant to explain – how often, did [Ms A] meet him “secretly”? The applicant said that their meeting “depended on chance”.
The applicant was asked to tell the Tribunal – what he knew about [Ms A’s] background? The applicant explained to the Tribunal, that she ([Ms A]) was “a fundamentalist lady who had problems with her husband.” The applicant was asked to explain – as to what were [Ms A’s] “problems” as she had told him? The applicant said that [Ms A] pleaded with him “to get her out of the hell…” she was living in.
The applicant was asked – why did this woman choose the applicant to seek help from? The applicant told the Tribunal that he “was not sure why ([Ms A]) chose him”. The applicant continued to tell the Tribunal “that it could have been anyone” that could have been called upon to help [Ms A] “get out of [her] hell.”
The applicant was asked to explain – what did [Ms A] tell him – about her circumstances in the meetings (“secret”) she had with him? The applicant said that she told him that “she was a victim of family violence.”
The applicant was asked to elaborate as to how many times he had met (“secretly”) with [Ms A]? The applicant said “few times” but could not “tell the Tribunal exactly…”
The Tribunal referred the applicant to Q.89 of his application and to his written response which was as follows:
[Details deleted from a signed statement concerning the development of the applicant’s contact with Ms A who was Sunni, Ms A’s declaration of love to the applicant, their meeting on the road home from the market, threats from her brother-in-law who saw them, how the applicant’s family took him to Islamabad, and further threats to his father and family.]
The Tribunal asked the applicant to explain as to why his statement (above) as provided to the Department and forming a significant part of his application seeking protection did not make mention of the “secret meetings” he told the Tribunal he had on a “few times” with [Ms A]? The applicant said that that his omission may have been caused by his forgetfulness and he also told the Tribunal that at the time when he made this statement, he was “psychologically suffering” because of everything that had happened to him.
The Tribunal referred the applicant to his most recent written statement dated 11th August 2023 and provided to the Tribunal where he does not recall that any meetings had occurred between [Ms A] and himself – “secretly”.
The applicant told the Tribunal that as far as he recollected the circumstances of his meeting with [Ms A] – the “meeting occurred in the market…”
The applicant was asked by the Tribunal to explain – what he meant, when he said “other occasions” having met with [Ms A]. At first, the applicant said he would meet her “on his way home…” and “on other occasions when nobody was around…” The applicant concluded his comments by telling the Tribunal that he “was not sure…”
The applicant was asked to explain – how he had determined that [Ms A’s] family were “fundamentalist” Muslims? The applicant said that he had heard it from “people in the neighbourhood” and that was what “people were talking…”
The applicant was asked to explain – how, he determined that [Ms A’s] family were “also members of the Taliban” or “connected to the Taliban”? The applicant said, “…I have heard it from the neighbourhood…but, I have no specific knowledge…”
The Tribunal asked the applicant – why would people in the neighbourhood say that [Ms A’s] family members were members or connected to the Taliban, was there a specific reason? The applicant’s response was that “most people talking that they were connected to the Taliban…”
The Tribunal asked the applicant – how did he come to know that [Ms A] had been murdered by her family? The applicant said that “they” [Ms A’s] family “admitted this” to his father.
The applicant was asked – why did he not provide a written statement signed by his father or an affidavit sworn by his father describing what he (the father) had been told about [Ms A’s] alleged demise? The applicant said that his was not advised that this was necessary.
The applicant was asked – why does he fear to return to Pakistan? The applicant said that [Ms A’s] family will find him and kill him. The applicant said that [Ms A’s] family are people with “influence” and will find out about his return to Pakistan – locate him and then kill him without hesitation.
The applicant described [Ms A’s] family as having influence in his neighbourhood and “in government…”
The applicant was asked to explain – how he determined that [Ms A’s] family had influence and power locally and within Pakistan? His explanation to the Tribunal was because of their “environment” and “lifestyle”. The Tribunal asked the applicant to elaborate on his explanation. The applicant said that [Ms A’s] family was “wealthy” and “influential” and they had “properties” (real estate) and “vehicles”.
The applicant was asked whether there were any incidents with [Ms A’s] family members prior to the claimed incident in October 2016. The applicant told the Tribunal that there were issues between himself or his family prior to October 2016.
Issues – concerning the applicants Shi’a religion
The Tribunal noted that in the applicant’s statement dated 11 August 2023 he claimed that:
Paragraph [14]
“Shi’a Muslims are targeted throughout Pakistan. I believe, I would be identified and harmed or killed no matter where I live due to my religion. Religious practices are important in Pakistan, this ensures that a person’s religious beliefs are easily identified. Extremist groups operate throughout the country and continually target religious minorities through attacks, target killings, harassment and discrimination.”
The Tribunal noted the applicant’s concerns about his Shi’a religion and asked him to elaborate and give details to the Tribunal showing that he had been targeted by “extremist groups” been a victim of “target killings”, “harassment” and “discrimination”. The applicant told the Tribunal that “Shi’as were a “minority in Pakistan” and were subjected to “intimidation and racism” not only by society in general but also by the what the applicant described as the “government system”. The Tribunal asked the applicant to elaborate on these concerns. In response, the applicant told the Tribunal, that in Pakistan he, as a Shi’a Muslim had “no value” and “no rights”. The applicant provided no specific circumstances where his was regarded without value or not provided with and enjoying the ‘rights’ he claimed had been withheld or curtailed because he was a Shi’a Muslim in a majority Sunni Pakistan.
The applicant told the Tribunal that he feared to return to Pakistan because he believed he would be targeted by [Ms A’s] family because of the October 2016 incident in the local market. The applicant also told the Tribunal that no part of Pakistan was safe for him if he was forced to return.
The Tribunal noted that in the hearing the applicant’s wife and child were present. The Tribunal acknowledged the presence of the wife and though the wife was not a formal witness to the proceeding the Tribunal provided her (if she wanted) to address the Tribunal.
Counsel’s submissions to the Tribunal
According to counsel’s submissions, the applicant fears harm upon return to Pakistan, due to his imputed political opinion. Counsel stated that:[4]
The fact that the applicant has been considered by an influential and well-connected family to have transversed cultural and political and religious norms by being perceived to enter an adulterous relationship will consider him to be opposed to traditional Islamic cultural and religious beliefs and ensure he (the applicant) is subjected to serious harm upon return to Pakistan.
[4] see, AAT File, written submission, A.U.M Lawyers dated 11 August 2023, in particular, see pp. 4-5.
According to counsel the applicant fears harm upon return to Pakistan due to his liaison with a married woman, who pursued him while his was living in Pakistan. This female pursued the applicant and professed to love him. The counsel submitted that the applicant:
…instructs that Ms […] believed he (the applicant) could provide her with a means to escape her fundamentalist husband and live freely. Ms […] approached the applicant at the marketplace and held his hand. This was witnessed by her brother-in-law.
It was counsel’s contention that the applicant fears harm from the female’s family, who are members of a Pashtun fundamentalist tribe with connections to the Taliban. It was also submitted that the female’s brother-in-law threatened to kill the applicant when he observed him with his sister-in-law in the marketplace. According to counsel:
…it is the applicant’s understanding that Ms […]’s brother-in-law believed the applicant was in a relationship with Ms […], who was a married woman and therefore deemed them to be in an adulterous relationship.
According to counsel, the applicant returned to his family home and explained what had happened at the marketplace to his parents. The applicant and his parents were extremely concerned, given the female’s family was known to have connections to the Taliban. Adultery is a serious crime in Pakistan and family honour is considered to be of paramount importance in Pashtunwali culture, counsel submitted. Therefore, it was counsel’s view that:
…the applicant feared that Ms […]’s family would kill him for his perceived actions. He knew they would not afford him the opportunity to explain the situation rather would deem he had committed adultery, contravening religious and social norms.
According to counsel, ‘fearing Ms […]’s family would come to their home, the applicant’s parents contacted his cousin and arranged for the applicant to travel to Islamabad until such time he could flee the country.’ Also,
While in Islamabad, the applicant was informed that [Ms A’s] family had come to
his home with guns and told his parents that [Ms A] had been buried alive. The men
threatened the applicant’s father and told him that they would find the applicant and kill him. His father was physically harmed.Counsel concluded
that It is our respectful submission that the applicant would be at a real risk of serious harm upon return to Pakistan given his perceived adulterous relationship with Ms […]. Adultery is considered a serious offence in Pakistan. This coupled with the fact [Ms A’s] family are Pashtun Sunni fundamentalist who have connections with the Taliban, the applicant was extremely fearful he would be harmed and killed. He instructs that her family are well connected and have the means to locate and harm him no matter where he resides in Pakistan. Further, the applicant would not be afforded state protection as the Authorities are likely to believe he deserves to be punished and harmed for his perceived actions. Given these matters, we submit that the applicant’s fear of harm due to his imputed political opinion is genuine and well founded.
Counsel also provided submission that the applicant feared harm due to his religion. According to counsel:
the Applicant fears harm upon return to Pakistan due to his Muslim Shia faith. The Applicant was born and raised as a Shia Muslim. The Applicant can easily be identified as a Shia Muslim given his prayer rituals. In Pakistan, prayer, and attendance at mosque as an integral part of everyday life and therefore an individual’s faith is easily identifiable by either their attendance or non-attendance at places of worship.
Counsel concluded by emphasising the following to the Tribunal:
Many members of the applicant’s religious community have been subjected to target
killings. It is evident from a myriad of country information below that extremist groups
target members of the Shia Muslim Community in Pakistan including targeted attacks
and target killings. The situation for the Shia Muslim community in Pakistan has
deteriorated since the Taliban came to power in neighbouring Afghanistan. The
Applicant originates from the border area between the two countries, where religious
tensions are rife. Accordingly, we submit that the applicant is at an increased risk of harm due to the fact he is a Shia Muslim. It is our submission the applicant would face a real chance of serious harm upon return to Pakistan due to his faith and imputed political opinion no matter where he resides.It was noted by the Tribunal that similar submissions were made by counsel in responding to the complementary protection criteria: s.36(2)(aa) of the Act.[5]
[5] see, AAT File, written submission A.U.M Lawyers dated 11 August 2023 at pp. 21, 22 and 23. Counsel notes (at p.21) paragraph [63].
The applicant’s wife accepted the Tribunal’s invitation. The wife told the Tribunal that she was an Australian citizen and a registered nurse – currently working at local hospital. The wife told the Tribunal that she lives in happy family environment and her husband provides much needed support to her and their young child. The wife told the Tribunal that her husband is a great support to her both personally and via his weekly earnings as [an occupation 1]. The wife told the Tribunal, that if her husband was forced to leave Australia and to return to Pakistan, this would have an enormous personal impact on her and their young child who would not have the emotional and economic security of a father.
Proposal for further submission concerning an appeal to the Minister to intervene
The Tribunal inquired of the applicant’s Counsel whether she had contemplated submissions-in-detail concerning Ministerial intervention in the applicant’s circumstances? Counsel advised the Tribunal that the matter was considered appropriate, and the Tribunal consented to Counsel’s request to be given time to prepare detailed submissions concerning a Ministerial intervention (the timeframe of three weeks was agreed to by the Tribunal).
Consideration and request for submissions on the issued Department Certificate (made pursuant to section 438 of the Act)
Counsel was informed by the Tribunal that the Department had issued (10 May 2023) a certificate pursuant to s.438 of the Act. The details of the certificate in question were provided to Counsel and were as follows:
Ref: [File number]
The District Registrar
Administrative Appeals Tribunal
MelbourneNOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER
SECTION 438 OF THE MIGRATION ACT 1958I notify the Administrative Appeals Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to the information in folio/s: POLICE REPORT –[applicant’s name] Border Watch Allegation – Police Report attachment; Additional information for job [number] re POI : [applicant’s name] CID: [….] and; Further allegation, in file [number].
This information was given to an officer of the Department of Home Affairs in confidence.
The Department considers that these documents, matters contained in these documents or information should not be disclosed to the applicant or the applicant’s representative because they contain personal particulars of a sensitive nature in relation to Domestic/Family Violence.The Administrative Appeals Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958.
If the Tribunal proposes to disclose any matter contained in these documents or the information to the applicant in accordance with paragraph 438(3)(b) of the Act, all third-party information should be redacted.
Danny Mihajlovic
Position number: 1097
Humanitarian Program Operations Branch
Delegate of the Secretary of the Department of Home Affairs10 May 2018
Counsel requested time (post-hearing) to respond to the contents of this certificate as issued by the Department. The Tribunal agreed to allow Counsel to provide written submissions regarding the issues raised on the certificate.
COUNTRY INFORMATION – PAKISTAN – RELIGIOUS TENSIONS BETWEEN SHI’A AND SUNNI MUSLIMS – AND THE RULE OF LAW
The country information concerning the current situation in Pakistan in regards to religious/political tensions and their relationship to the rule of law have the source from the Department of Foreign Affairs & Trade (DFAT) Country Information Report – Pakistan, 25 January 2022.[6]
[6] see, DFAT Country Information Report – Pakistan, 25 January 2022 in particular see pages 22, 26 and 27 et.al.
RELIGION
3.28 According to the 2017 national census, Muslims comprise 96.47 per cent of the population. Of this number, an estimated 80-90 per cent are Sunnis and 10-20 per cent are Shi’a. Hindus comprise 1.73 per cent of the population, Christians 1.27 per cent, Ahmadis 0.09 per cent (counted separately from Muslims in official figures), and others (including Sikhs, Parsis, Baha’i and Buddhists) 0.32 per cent. Minority groups dispute these figures, saying they undercount minorities.
3.29 Article 20 of the Constitution provides ‘subject to law, public order, and morality, —(a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’. Article 36 guarantees ‘the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services’. The Constitution establishes Islam as the state religion. Articles 41(2) and 91(3) require that the president and prime minister be Muslim. Article 260 of the Constitution defines the term ‘Muslim’, and explicitly excludes from that definition several groups, including Ahmadis. The government sets a 5 per cent quota for hiring religious minorities (excluding Shi’a and Ahmadis) at the federal and provincial levels of government, but these targets are rarely met.
3.30 In 1979, President Zia ul-Haq introduced The Offence of Zina (Enforcement of Hudood) Ordinance, 1979, also known as the ‘Hudood Ordinances’, prohibiting consumption of alcohol, sex outside marriage and pornography. Non-Muslims are exempt from the alcohol ban; the other bans apply to Muslims and non-Muslims alike. 3.31 Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, 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 TLP).
Shi’a
3.55 Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions.
3.56 Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. 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.
3.57 Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’.
3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. 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).
3.59 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.
3.60 Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and 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, see 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.
3.61 DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a face specific, heightened risks.
FINDINGS AND REASONS FOR DECISION
The issue of credibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[7] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[7] For example see, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Another (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pem Run Juan (1996) 40 ALD 445, Chand v Minister for Multicultural Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Minister for Immigration and Ethnic Affairs and McIllhaton v Guo Wei Rong and Pam Run Juan[8] Foster J stated that:[9]
…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.
[8] (1996) 40 ALD 445
[9] At [482]
Numerous decisions have endorsed the principle that benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Lian & Others,[10] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[11]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the fact (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
[10] (1996) 185 CLR 259.
[11] At [25][
The Tribunal is not required to accept uncritically any, or all allegations made by an applicant. Nor is it 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, or obligated to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:
Where there is conflicting evidence from different sources, questions of credit of witnesses may be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[12]
[12] [1997] FCA 1198 accessed 15 February 2017.
Nevertheless, as Burchett J counselled,[13]it is necessary to:
…understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[14] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991_Butterworths) at pp.84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[15] Nor, is there any rule that a decision-maker must hold a “positive state of disbelief…” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[16] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[17] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[18]
…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that the Applicant for refugee status is, on one view of events, engaged in an often-desperate battle for freedom, if not life itself.
[14] see, in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167, at accessed 15 February 2017.
[15] see, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
[18] (1999) 197 CLR 510 at [191].
The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim a satisfied. The Tribunal notes that in lyer [19] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go further in its analysis of the basis of the claim. This decision was affirmed on appeal.[20]
[19] Iyer v MIMA [2000] FCA 52 (see, the judgement of O’Connor J, 4 February 2000), at [32]-[34].
[20] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
The Tribunal notes that if it makes findings that the applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. On the other hand, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is subjective fear.[21]
Consideration of the applicant’s claims – is the applicant entitled to protection as provided for in s. 36(2)(a) of the Act?
[21] see, SAAD v MIMA [2003] FCAFC 65 (Cooper, Carr and Finklestein JJ, 11 April 2003) at [38] and see also, Selliah v MIMA [1999] FCA 615 at [40].
The applicant is [an age]-year-old male born in [District 1], Khyber Pakhtunkhwa, Pakistan. His ethnicity is Pashtun, and his religion is Shi’a Muslim. He has family in Pakistan currently living which consists of his father, his mother is deceased. He is currently married to an Australia national and has a child. He has not returned to Pakistan since his arrival in Australia in 2016.
The applicant’s claims
The applicant fears harm upon his return to Pakistan, due to his imputed political opinion. He claims that he has been considered by an ‘influential’ and ‘well-connected family’ to have ‘traversed cultural and religious norms’ by being ‘perceived’ to have engaged in an ‘adulterous relationship’ with a married woman – that action being ‘opposed to traditional Islamic cultural and religious beliefs’ and therefore, would be punished for his actions if, and when he returns to Pakistan.
Further, the applicant fears that upon his return to Pakistan he will be harmed due to the perception that he had relationship with local married woman (identified to the Tribunal as [Ms A]) which the applicant denied but that that female pursued him while he was living in Pakistan. The applicant claims that this woman expressed her love for the applicant and believed that he could ‘provide her with a means to escape her fundamentalist husband and family and to live freely.’ The applicant claimed that this female approached him in the local market and pleaded with him openly and this incident was witness by that female’s ‘brother-in-law.
The applicant claims that he fears harm from this female’s family, ‘who are members of a Pashtun fundamentalist tribe’ with ‘connections to the Taliban.’ The applicant further claims that the female’s brother-in-law had threatened to kill the applicant because he believed that the applicant ‘was in a relationship’ with her.
The applicant claims that his family took very seriously these matters and organised him to immediately leave Pakistan. He also claims that members of the female’s family assaulted his father and also disposed of the female (killed) as retribution for her ‘adulterous’ actions and ‘left the area.’ Nevertheless, the applicant fears that they are influential within Pakistan and would locate and deal with him if he was to return. The applicant also claimed that these threats towards him have been made known to his father via ‘unidentified calls’ on his mobile phone.
The applicant also feared discrimination and harm because of Shi’a faith in Pakistan which was a majority Sunni Muslim country. For the reasons that follow, the Tribunal does not accept as credible the applicant’s claims.
(a)interactions with [Ms A] and the incident in the market
In the applicant’s Protection visa application and in his evidence before the Tribunal, the applicant claimed that the female named ‘[Ms A]’, who he described as the ‘wife of an individual from a local Pashtun fundamentalist tribe with links to the Taliban’ told him sometime in October 2016 (at the local market) that she loved him and ‘asked me [the applicant] to take her away from her husband’s house’ which according to the applicant, [Ms A] described as “a hell”.
The applicant said that he resisted the female’s invitation, telling her and warning her, that he was not interested and that ‘by doing this she was placing in danger his life and hers’.
The applicant told the Tribunal that the two were observed by [Ms A’s] ‘brother-in-law’ who took exception to this and thereafter threatened the applicant with harm and even death – accusing the two of having had an ‘adulterous relationship.’ The Tribunal considered this evidence and the applicant’s further explanations about these circumstances, as lacking substance and credibility. First, the applicant was asked to explain to the Tribunal – how his involvement with [Ms A] commenced? The applicant told the Tribunal that he and his family ‘lived in the same neighbourhood’ and he ‘would exchange pleasantries on occasion but there was no affection or any association or relationship’ with [Ms A]. It was noted by the Tribunal, the applicant’s evidence in his written statement to the Tribunal and to the Department in his application did not admit to prior knowledge of [Ms A] or having exchanged any pleasantries with [Ms A] – all occurred at the local market but the applicant in his evidence to the Tribunal provided a different set of circumstances concerning himself and [Ms A] which was in direct conflict with the evidence already before the Tribunal.
Second, the applicant told the Tribunal that he had come to know about [Ms A’s] family problems because ‘[Ms A] told him when she met him secretly.’ The Tribunal asked the applicant to explain how often did [Ms A] meet him ‘secretly’ and the applicant said that their meetings ‘depended on chance.’
The Tribunal was provided with a written submission (dated 12 September 2023)[22] in which the applicant’s Counsel attempted to qualify what the applicant meant by the word “secretly” when referring to his meetings with [Ms A]. Counsel explains as follow:
It was raised at the applicant’s hearing that he had not previously indicated that he secretly met with [Ms A]. As clarified by the applicant at his hearing, he did not meet with her secretly, rather she stopped him and spoke to him, these liaisons were not witnessed by others until the incident at the marketplace. The applicant did not meet with [Ms A] at a private or secret place.
With respect, we submit that the applicant clarified this aspect of the evidence at the hearing. From his explanation it is evident that he did not intend to say they met secretly, rather they spoke without any one being aware of it, prior to the incident at the market place.
[Italics are the Tribunal’s]
[22] see, AAT File Applicant’s written submission (supplementary) dated 12 September 2023 at paragraphs [2] & [3].
The Tribunal notes the explanations provided by Counsel above. Returning to our attention to the written evidence as submitted – applicant’s recollections as written in Q. 89 of his application for Protection he recalls[23]:
I left Pakistan because I was subject to serious and unavoidable threats to my life because married women from [Ms A’s] family fall in love I when I was in Pakistan. We were living in the same neighbourhood and she [Ms A] used to keep an eye on my movements. One day she stopped me when I was on my way to home….She was unavoidable and would always stop me in middle of the way in our neighbourhood…
[Italics are the Tribunal’s]
[23] note: see paragraph [29] of this decision above.
The above quotation by the applicant makes no mention of meetings secret or between the two without others present – except as he states “one day” she [Ms A] stopped him and spoke to him briefly and then, when he was on ‘the way to the market’ when the two were (as was claimed) observed by [Ms A’s] brother-in-law.
There is a diversion from what was said and recorded and then an attempt to qualify. The applicant was asked to elaborate as to how many times he had met secretly with [Ms A]. The applicant’s response was not clear, nor did he provide a particular time frame as to when these meetings in secret or otherwise when they occurred but only told the Tribunal that he met her a ‘few times’ but admitted that he ‘could not tell the Tribunal exactly’ when.
These subsequent admissions of the applicant which are at variance with his previous statements - having had prior knowledge of [Ms A’s] personal circumstances with her family and husband and having had a number of meetings with her (secret or otherwise – just the two) runs contrary to what the applicant had stated in his application statement and in his written statement provided to the Tribunal dated 11 August 2023 and present a major variation of the original claims and cause concern to the Tribunal to the point that the Tribunal is of the opinion, that the entire claims as submitted were the subject of a considerable embroidery of events by the applicant and were only presented in order to make attractive the applicant’s claims that he was properly entitled to seek to access to Australia’s protection obligations because of the issues that had occurred in his local area as he claimed between himself and a local woman that was married to local Pashtun (Sunni) fundamentalist with links to the Taliban. Therefore, the Tribunal does not accept these claims as having any substance or credibility.
Third, the applicant claimed that [Ms A] was the wife of an individual within a fundamentalist (Sunni) Pashtun family, who were linked to the Taliban. The applicant was asked to explain how he determined that [Ms A] was the wife of a ‘fundamentalist’ and one who had ‘links to the Taliban.’ The applicant’s response was to tell the Tribunal that he had heard it from the neighbourhood, but he admitted he had “no specific knowledge.” Again, the applicant’s evidence relied on what others had allegedly said about [Ms A], her husband and family and their fundamentalist beliefs and association with the local Taliban. Therefore, the Tribunal finds it hard to believe the applicant’s description of [Ms A’s] family or that she was the wife of an individual that was a fundamentalist with links to the local Taliban when the evidence is mere hearsay of others and for these reasons, the Tribunal does not find this aspect of the applicant’s claims as having any substance or credibility.
Four, as noted above, the applicant was asked about the incident that occurred in the marketplace in October 2016, in which, the applicant was (as he claimed) approached by a woman wearing a burqa who called his name. The applicant provided very little details about this meeting in the local market with [Ms A] to the Tribunal. In particular, in describing these events, the applicant made no reference to a woman wearing a burqa but told the Tribunal that he was approached by [Ms A] who told him or pleaded with him to take her away from the ‘hell she was living’ and that the two were seen by [Ms A’s] brother-in-law who was also at the marketplace.
Moreover, the description of the brother-in-law who witnessed the applicant’s meeting with [Ms A] in the marketplace was very lightly referred to. Indeed, if, as was claimed, [Ms A] was a member of fundamentalist family with links to the Taliban such an intrusion with family honour especially in public, would have invited immediate reactions and possibly a reprisal by the brother-in-law on the applicant or at the very least, the applicant would have been confronted directly by [Ms A’s] brother-in-law. Instead, certain verbal threats were expressed and no violent reprisals. Instead, after a lapse of time, [Ms A’s] family members take reprisals against the applicant’s father – when the applicant is safely removed to Islamabad as a prelude to his leaving for Australia. The Tribunal had scarcely any corroborative evidence provided by the applicant – at least to confirm that his father was subjected to some harm because of his son’s actions. That aspect of the evidence is lacking. Moreover, Counsel’s claim was that as a result of these incidents, the applicant feared harm upon return to Pakistan, due to his imputed political opinion. However, the Tribunal is not provided with any evidence whatsoever, that would show with some convincing certainty that the applicant was been targeted as Counsel argued in her submission (dated 11 August 2023) ‘by an influential and well-connected family’. That ‘influence’ and ‘well connected family’ is not produced in the evidence before the Tribunal. Given these concerns with the applicant’s evidence overall, the Tribunal does not find credible the applicant’s claims that if returned to Pakistan he will face the real risk of harm and persecution due to his imputed political opinion opposing Sunni fundamentalism and cultural and religious norms because he has been targeted by a local ‘influential’ and ‘well-connected family’ – Sunnis in their religion and with links to the Taliban caused by a relationship (perceived) with a local Sunni woman married to Sunni fundamentalist.
Therefore, as the Tribunal has found the applicant’s claim to have been involved with a [Ms A] and the marketplace incident not to be credible, it follows that the Tribunal does not accept that the applicant’s life was threatened by [Ms A’s] brother-in-law as was claimed, or by her family generally, or by any other person, group, or authority.
(b)The applicant’s Shi’a Islam religion and the threat of violence
The applicant claimed that because [Ms A] Pashtun family were from a Sunni Islam background and were connected with the Taliban, they would not have any mercy on him and would seriously harm and would kill him because he was a Shi’a Muslim. The Tribunal having not accepted the claims submitted by the applicant in relation to [Ms A’s] issues with her family and the incident in the marketplace, the Tribunal does not accept that he will be targeted by her family, the Taliban or any other person or persons in relation to this matter. Further, the applicant was asked during the hearing if he had been targeted while in Pakistan on account of being a Shi’a Muslim.
The applicant’s response was in general terms, to tell the Tribunal that in Pakistan as a whole, the Shi’a Muslims were a minority and were subjected to discrimination, threats and violence committed on them by the Sunni Muslim majority. The Tribunal asked the applicant if he had been harmed in Pakistan previously because of his Shi’a Islam religion and in response the applicant told the Tribunal that the Shi’a were a ‘minority in Pakistan’ and were subjected to ‘intimidation and racism’ not only by society in general but also by the ‘government system.’
The Tribunal asked the applicant to explain – how he was subjected to ‘intimidation and racism’ and what had been his experiences with ‘government system.’ The Tribunal noted that the applicant provided no specific circumstances where he was regarded or treated without value or not provided with and enjoying the ‘rights’ he claimed had been withheld or curtailed because of him being a member of Shi’a sect of Islam in Pakistan.[24] The applicant also did not explain how his fears with the Taliban through [Ms A’s] family ties jeopardised his life as a Shi’a.
[24] see, paragraph [44] of this decision above.
In its most recent Country Information Report – Pakistan, the Department of Foreign Affairs and Trade[25] describes the situation for Shi’a’s in Pakistan, advising that:
3.55 Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions.
3.56 Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. 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.
3.57 Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’.
3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. 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).
3.59 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.
3.60 Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and 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, see 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.
3.61 DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a face specific, heightened risks.
[25] DFAT, Country Information Report – Pakistan January 2022 .
Considering the country information above and the applicant’s responses which did not provide specific instances of his being the victim of religious violence inflicted on Shi’as in Pakistan or any specific instances of discrimination - societal or by the authorities also inflicted on Shi’as, though the country information indicates difficulties for Shi’as in Pakistan generally speaking, the Tribunal does not accept that there is a real chance of the applicant suffering harm because of his Shi’a religion, or for any other reason or reasons as was claimed.
Consideration of Certificate issued by the Department pursuant to s.438 of the Act
The Tribunal noted that the Department had issued on 10 May 2018 a Notification Regarding the Disclosure of Certain Information under s.438 of the Migration Act 1958.
The information does not concern matters currently before the Tribunal and therefore form no part of the Tribunal’s conclusions on matters dealt with in this decision.
Accordingly, the Tribunal finds that the certificate is valid but that the information to which the certificate applies is not relevant to the applicant’s review because the information is not relevant to the applicant’s claims for protection.
FINDINGS
The Tribunal has considered the applicant’s claims individually and cumulatively and for the reasons provided by the Tribunal above, the Tribunal:
(a) does not accept that the applicant had any involvement with a woman called ‘[Ms A]’, and;
(b) does not accept that the applicant was witnessed by [Ms A’s] brother-in-law talking in a local market place, and subsequently had his life threatened and;
(c) does not accept that the applicant would be targeted and/or harmed in Pakistan because of his Shi’a Islam religion and belief, or for any other reason or reasons.
Therefore, though the applicant claims to fear harm in Pakistan because of his religion, being a Shi’a Muslim, romantic advancements made by a spouse of an individual belonging to a fundamentalist local Pashtun family with links to the Taliban and an incident in a marketplace where the woman’s brother-in-law observed them talking and threatened the applicant’s life, for the reasons the Tribunal has set out above, the Tribunal does find the applicant’s claims in relation to [Ms A] and the marketplace incident as credible. Further based on the available country information, the Tribunal has not found his claim that the applicant will be targeted and/or harmed in Pakistan because of his Shi’a Islam religion to be well-founded. There being no other information to indicate therefore, that there is a real chance of persecution for one or more of the reasons provided for in s.5J(1) (a) of the Act.
100. Therefore, the applicant is not a refugee as defined in s.5H of the Act.
101. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERIA – ASSESSMENT
102. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection criterion in s 36(2)(aa).
103. The applicant has claimed to fear harm because of religion and imputed political opinion.
104. In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part):
In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] …there is a real chance that SZQRB will suffer significant harm …were he to return to Afghanistan [see paragraph 246].
105. In the present case, the Tribunal has found that the applicant faces no real chance of serious harm in Pakistan for all the reasons as they submitted. The individual and cumulative reasoning applies equally in the complementary protection context, having regard to the concepts of real risk and significant harm.
106. Thus, the Tribunal finds that the evidence before it, offers no substantial grounds for believing the applicant faces a real risk of significant harm – in any manner or form – as claimed – as a necessary and foreseeable consequence of the applicant being returned to Pakistan, for any of the reasons submitted. In particular, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there is a real risk that the applicant is to suffer significant harm with regards to any incident or incidents he claimed he was involved in with a female, at a local market or elsewhere (as claimed) who was the spouse of a local Pashtun fundamentalist and family with ties to the Taliban or because of the applicant being a Shi’a Muslim in a majority Sunni Muslim country (as is Pakistan) as is provided for in s.36(2)(aa) of the Act. Also, the Tribunal does not accept that the applicant has endured or will endure any discrimination (for the reasons stated above) or harm in his personal life of which the applicant complained, even if viewed cumulatively, amounting to ‘significant harm’ as defined by s.36(2A) of the Act.
107. Therefore, as the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for by s.36(2)(aa) of the Act.
108. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION
110. In the applicant’s post-hearing written submission dated 12 September 2023 a request was made for the Tribunal to refer this case to the Minister for consideration in the event the applicant is found not to meet the criteria for the grant a Protection visa under s.36 of the Act.
111. The Tribunal notes that under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’.
112. The Tribunal noted that that under s. 417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with compassion and care’ where an individual’s situation involves ‘unique and exceptional circumstances, which are said to include:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen.
113. Since the Applicant’s arrival in Australia in 2016, he has been employed by [an occupation 1] and has married an Australia citizen and has a child. The applicant and his Australian spouse have established their home and are both employed supporting their family and meeting the day-to-day demands of their household. The applicant, from the evidence before the Tribunal is good provider for his wife and young child and is respected amongst his family and friends in Australia. Indeed, his contribution to his family is central and important and for him to be forced to leave Australia would seriously cause insurmountable difficulties for his wife and child who both rely on the applicant to maintain a sustainable living standard they have grown accustomed to.
114. The Tribunal noted the applicant’s Counsel’s submissions concerning the applicant’s importance to his Australian wife’s and child’s wellbeing and welfare.[26]
[26] see AAT File Legal Counsel’s supplementary written submission dated 12 September 2023 see pp.3-5 and supporting documentation.
115. The removal of the applicant will heavily impact Australian citizens, both emotionally and in physical terms and without this care vulnerable people will suffer.
116. For these reasons the Tribunal considers that the circumstances warrant that it recommends to the Minister/and or the Department that it/he conduct an assessment of applicant’s circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister or for his Department’s consideration.
DECISION
117. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…
- AGLC
- 1814205 (Refugee) [2023] AATA 4470
- Case
- [2023] AATA 4470
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under section 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). This required the Tribunal to determine if the applicant had established a well-founded fear of persecution or significant harm if returned to Pakistan, based on his claims of imputed political opinion, membership of a particular social group, or other grounds for complementary protection.
The Tribunal considered the applicant's claims in light of the evidence presented, including the Department's file and material referred to in the delegate's decision. It accepted the applicant's identity as a national of Pakistan. The Tribunal's reasoning focused on whether the circumstances described by the applicant constituted a real risk of significant harm, taking into account the provisions of sections 36(2A) and (2B) of the Act, and relevant Ministerial Directions and Guidelines. Ultimately, the Tribunal concluded that the decision under review should be affirmed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background – Applicant’s migration and visa history On 15 June 2015 the applicant applied for a Combined Partner (UF309/BC100)visa (offshore). On 10 November 2015 he applied for a Visitor (Sponsored Family Stream) (FA600) visa (offshore). On 11 January 2016 the Department refused the Visitor (Sponsored Family Stream)(FA600) visa (offshore). On 19 January 2016 a Merits-review was sought for the refused Visitor (Sponsored Family Stream)(FA600) visa application which was remitted back to the Department. On 19 October 2016 he was granted a Visitor(Sponsored Family Stream)(FA600) visa (offshore). [In] October 2016 he arrived in Australia. On 5 January 2017 the applicant’s Sponsorship was withdrawn for his Combined Partner (UF309/BC100) visa (offshore). On 11 January 2017 he applied for a Protection (XA866) visa; and was granted that visa’s Associated Bridging visa. On 29 January 2017 the applicant’s Visitor (Sponsored Family Stream)(FA600) visa ceased; and the bond was forfeited. On 1 May 2017 the applicant’s Combined Partner (UF309/BC100) visa (offshore) was refused. Applicant’s identity and country of origins as claimed Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’)[1] and to the Tribunal, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. On the basis of this evidence, the Tribunal further accepts that the applicant’s identity is as claimed. The Applicant’s Department file and information therein accessed by the Tribunal [1] see, certified copy of Pakistan Passport ([number]) issued [in] 2015, expiry date [in] 2020, including biodata page and all visa pages within Passport: see, Department File [number] Folios [72-90].