1822048 (Refugee)

[2020] AATA 5365

1822048 (Refugee) [2020] AATA 5365 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1822048

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denise Connolly

DATE:9 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 9 December 2020 at 12:53PM

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia – imputed political opinion – opposition to the Taliban – Shia organisations – physical assault – killing of relatives – Taliban targeting schools – return visits to Pakistan – family members fleeing to Iran – sectarian attacks – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan applied for the visa on 6 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds.  

3. This Tribunal has before it the review applications for the applicant and his older sister, [Sister A], born [date], who has also made an application for protection, relying on similar claims to the applicant. As much of the material before the Tribunal is relevant to both matters, its consideration of claims and evidence is the same in many aspects.

   CLAIMS AND EVIDENCE

   Background

4. The applicant was born on [date] in Australia. His parents hold Pakistani citizenship. His religion is Shia Muslim and his ethnic group is [specified]. Other members of the applicant’s family, his father, mother and [Brother B], have previously made applications for protection, which have been refused.

   The first application for protection

5. The applicant’s father, [Mr C], made an application for protection on 14 November 2012. The applicant’s mother, [Ms D], applied as a member of his family unit and did not make her own claims for protection. [Mr C] claimed to fear harm because he is a Shia Muslim who had been targeted and harmed in Pakistan. He claimed that in November 2009 Taliban gunmen killed his father’s [relative], [a former official], because he was a Shia Muslim. He claimed that in May 2011 the Sunni extremist Taliban group, Lashkar-e-Jhangvi (LeJ) kidnapped two of his [relatives] and beheaded them. He claimed in September 2012 he and his wife returned to Pakistan and a week after their return they were noticed by the LeJ and followed. He claimed that when he and his wife were travelling to attend a religious ceremony, about 10 km from their home, 4 men in 2 groups followed them while on a motorbike and fired shots at them. [Ms D] then had a miscarriage. [Mr C] claimed that his father, the [Position 1] of a Shia organisation outspoken about Taliban cruelty to the Shia community, was killed in October 2012. He claimed to fear persecution by the LeJ in Pakistan.

6. The delegate did not accept that [Mr C]’s claims were genuine. The application for protection was refused and [Mr C] lodged an application for review. The then Refugee Review Tribunal (differently constituted) affirmed the delegate’s decision on 4 February 2014. The RRT did not accept [Mr C]’s claims and concluded that [Mr C] and [Ms D] were not credible witnesses. [Mr C] and [Ms D] did not seek judicial review of that decision. An application to the Minister requesting intervention pursuant to s.417 of the Migration Act was made, but unsuccessful.

   The second application for protection

7. On 16 May 2014 the applicant’s older brother, [Brother B], born [on date], and [Ms D] made an application for protection visas, including [Mr C] as a member of the family unit. It was claimed that [Ms D] feared harm because she and her husband had been targeted and suffered harm at the hands of the Taliban because they are Shia Muslims. The particulars of the claims were similar to those made by [Mr C] in his application. It was also claimed that [Brother B] would be harmed because he is a Shia Muslim.

8. The application was refused by the delegate on 1 October 2014. The Tribunal (differently constituted) affirmed the delegate’s decision on 15 February 2016, not accepting the claims that [Mr C] and [Ms D] had been targeted and harmed, or that members of [Mr C]’s family had been targeted and killed. The Tribunal formed the view that the claims and documentary evidence had been fabricated. Judicial review was sought and [in] July 2017 the Federal Circuit Court of Australia upheld the Tribunal’s decision. [Ms D] and [Brother B] then sought further judicial review by the Federal Court of Australia and [in] February 2020 the FCCA’s judgement was upheld by the FCA.

9. Before this application, the applicant’s older sister, [Sister A], made an application for protection, also relying on the claims of her parents. The delegate refused the application on 28 October 2016. That matter is also before this Tribunal.

   Application before this Tribunal

10. In the written visa application the applicant’s parents, who made the application on his behalf, made the following claims. The applicant essentially relies on the claims of his parents, set out above. His parents left Pakistan because they feared persecution and serious and significant harm from the Taliban because they are Shia. It was also claimed that the Taliban target schools and colleges and kill students. It was claimed when in Pakistan his parents moved to Islamabad but the authorities did not protect them and will not protect the applicant.

11. The applicant’s father, [Mr C], was interviewed on his behalf on 2 March 2018. The Tribunal notes he chose to participate in the interview in English. [Mr C] told the delegate the applicant fears returning to Pakistan because he will not be safe and there will be no-one to look after him if his parents are killed. His parents had issues with the Taliban and [Mr C] believes they will target the applicant because of his faith. The delegate raised with [Mr C] that his own protection claims, on which the applicant relies, have not been accepted by the Department or the Tribunal. He asked if [Mr C] has any new information relevant to the claims. [Mr C] indicated that they do not have anyone in Pakistan. They have no contact with family in Pakistan. His family has moved to Iran.  He stated that he provided information in a previous application about his family migrating to Iran but the Tribunal did not accept his claims. It will be hard to cope in Pakistan with three children as they have no family. Schools are targeted so education is not safe. He wants to provide the applicant with a safe life and a good education.  

    Information before the Tribunal

12. The applicant provided to the Tribunal a copy of the delegate’s decision record. The delegate accepted that the applicant is a Pakistani citizen. However he did not accept that the applicant will be persecuted in Pakistan on account of his imputed political opinion or religion, or that he is at any risk of future harm by the Taliban for reasons of his imputed political opinion or religion should he return to Pakistan. The delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

13. On 4 August 2020 the Tribunal wrote to the applicant inviting him to attend a hearing on 24 August 2020. He was advised that the Tribunal wished to take evidence from [Mr C]. Given the applicant’s age the Tribunal explained that it was not necessary for him to attend the hearing in person and the Tribunal could take evidence from his father on his behalf. [Mr C] wrote to the Tribunal asking that the hearing be postponed due to [Sister A’s surgery]. He provided a letter from the Children’s Hospital advising [Sister A]’s surgery was [in] July 2020.

14. The Tribunal also intended to combine the hearings for the applicant and [Sister A], as [Mr C] would be giving evidence on their behalf. [Mr C] requested that the hearings be scheduled separately. The Tribunal agreed to separate the hearings and set down the applicant’s hearing immediately after that of his sister. [Mr C] also sent to the Tribunal a letter from [Dr E] dated 10 August 2020 stating that [Mr C] suffers from depression and anxiety, and chronic back pain. His depression has been stabilised with medication and he receives treatment from the community mental health team. He had recently had mood swings and anger management issues. Also his back pain had flared up and he was taking pain relief. The Tribunal considered this information but noted [Mr C]’s treating doctor had not stated that he would not be able to participate in the hearing.

15. [Mr C] also provided to the Tribunal a medical certificate from [Dr F] dated 12 August 2020 advising that [Sister A’s condition] was treated by [specified treatment] and when examined on 11 August 2020 her wound had completely healed and she was deemed safe to return to school.

16. Having regard to the medical evidence provided the Tribunal decided not to postpone the applicant’s hearing as it formed the view that it appeared [Mr C] would be able to provide evidence on the applicant’s behalf.

    Hearing on 24 August 2020

17. [Mr C] attended the hearing in person on 24 August 2020 to give evidence on the applicant’s behalf. He confirmed that, while he had some back pain, he was able to give oral evidence. The Tribunal invited him to ask for a break if necessary, in the event that his back pain was distracting. There was a short adjournment when [Mr C] was able to lie down to rest his back.  [Mr C] indicated that it was not necessary for him to have an interpreter as he was confident about giving the evidence in English.

18. The Tribunal asked about the applicant’s family background. [Mr C] indicated that he completed [Degree 1] at [University 1]. He then worked in the family business. He came to Australia as a student in 2009 and completed a [Certificate Course 1]. He also completed a [Diploma Course 1] and a [Certificate Course 2]. He has worked in Australia at a [business], and as a [Occupation 1], a [Occupation 2] and a [Occupation 3]. He was working as a [Occupation 2] and in a [business] prior to the COVID19 lockdown. He has since struggled to secure ongoing employment. The family has been relying on charity from [Agency 1], who pay part of their rent, and friends with whom they live who assist with other costs. They also receive vouchers for food and clothing from [another agency]. His wife, who has tertiary qualifications, is not working because she looks after the children. They have a credit card debt. Both he and his wife are fluent in English. He is currently struggling to support the family so his wife is going to look for work. He acknowledged that he had been doing some [specified work] on and off, and [Agency 1] gives him work [in Occupation 3].

19. [Mr C] explained that his marriage was arranged and he and his wife married by mutual consent in 2010.

20. [Mr C] claimed that his own family, his three brothers and mother, has now moved to Teheran, Iran. Two brothers work in Iran, one running a [business], and another as an [Occupation 4]. The third brother is studying. They are temporary residents and may be able to secure permanent residence if one brother marries an Iranian girl. They moved to Iran in 2016 because they are Shia and there were financial issues after his father died. The Tribunal asked why they would move to another country if they were having financial issues. He indicated that it was not expensive to move. He indicated they went there on visitor visas. His brother is allowed to work in [Occupation 4] as the holder of a temporary visa.

21. [Mr C] stated his wife’s family lives in Peshawar. Her father is a retired [Occupation 5] and her mother is a housewife. She has [specified family members]. One of her brothers is unemployed, although on and off engaged in business, and [another] is studying. Her sisters are married and housewives. Some siblings live in Peshawar; others in Lahore.

22. The Tribunal asked [Mr C] why the applicant is not able to go to Pakistan. He confirmed the applicant does not have any health issues. However he was born here and English is his language. Also there are concerns about the education he would receive in Pakistan as the family cannot afford quality education. Also he believes the security is not good in Pakistan and the applicant will not have a good life there.

23. The Tribunal explained that two Tribunal members for his and [Ms D]’s matters, differently constituted, raised concerns about the credibility of their claims. It asked [Mr C] if he wants the Tribunal to consider his claims, when deciding whether the applicant is a person in respect of whom Australia has protection obligations. [Mr C] indicated he was not sure if he wanted the Tribunal to look at his claims. He indicated that the applicant does not have family in Pakistan and he feels the applicant will be harmed, particularly if something happens to him. The Tribunal asked what he was referring to. [Mr C] indicated he was suicidal in 2015/2016 because he felt like giving up. He was trying to fight for his children but there were credibility issues in his case. He indicated he wanted the Tribunal to look at his claims in considering the applicant’s case.

24. The Tribunal noted that the previously constituted Tribunal reviewing [Ms D]’s application, decided in February 2016, found [Mr C]’s return to Pakistan in September 2012 cast doubt on his claims to be fearful or to have been of adverse interest to extremists in Pakistan. [Mr C] acknowledged the Tribunal did not believe him. He thought it was because of his anxiety and depression. He acknowledged his evidence may have been inconsistent with that of his wife and indicated he could not control his emotions.

25. The Tribunal explained that the previously constituted Tribunal did not accept that [Mr C] feared people were watching him while he was in Pakistan. [Mr C] indicated he did not know why the member did not believe him because people who have been to Pakistan know that this happens.

26. The Tribunal explained that the previously constituted Tribunal found that [Mr C] and his wife gave inconsistent evidence regarding events in Pakistan and did not accept his claim that he was being monitored and/or attacked by the LeJ. Nor did it accept that his father had been killed by extremists, or that his family members disappeared after his father’s death. [Mr C] indicated he did not know why the Tribunal did not accept his claims. He indicated he was able to submit his parents’ visas showing they were in Iran. He then corrected his evidence and indicated that it was just his mother who had gone to Iran. He indicated that he and his wife went back to Pakistan, even though he thought he was of adverse interest to extremists, because his wife was not sure whether they would be under threat.

27. The Tribunal noted the RRT, in reviewing [Mr C]’s application, decided in February 2014, made the following findings. It explained the RRT did not accept, on his return to Pakistan in September 2012, that [Mr C] would have gone out if he was fearful of being watched. The RRT also formed the view if he was genuinely fearful while in Peshawar he would have gone to Islamabad earlier. [Mr C] submitted that his claims had not been manufactured. He indicated he was fearful but was not sure if they were going to be attacked. He indicated his wife wanted to visit her parents so they went on a bike and were attacked. They did not think they would be attacked. He told the Tribunal that he the said to his parents “why didn’t you tell me not to come to Pakistan?”. He indicated they were concerned about going to Islamabad because it was an expensive city. The Tribunal noted that [Mr C]’s explanation for the delay in going to Islamabad might be inconsistent with the explanation given to the previously constituted Tribunal, indicating that they were staying with cousins in Islamabad. It asked in those circumstances why it would have been expensive. [Mr C] then indicated that his wife had told him people were watching them and they could not leave Peshawar. He claimed his father had been killed by extremists. He referred to brothers disappearing but then clarified that his brothers did not disappear.

28. The Tribunal asked [Mr C] if there was any other reason why it should be satisfied the applicant might suffer harm in Pakistan. [Mr C] repeated his concerns that the applicant will not receive a good education; there are security concerns and, if something were to happen to the applicant’s parents, he will be harmed. Also he has been brought up in Australia. The Tribunal asked [Mr C] about his religion. [Mr C] indicated that he is not practising anymore but he is a Shia Muslim.

    Invitation to comment on adverse information

29. On 10 November 2020 the Tribunal wrote to the applicant inviting his comments and/or response to information it considered would, subject to his response, be the reason or part of the reason for affirming the decision under review. The Tribunal explained that he had claimed in his visa application that he would be harmed in Pakistan because his parents left Pakistan, fearing persecution and serious and significant harm from the Taliban as they are Shia Muslims. It explained that his parents and [Brother B] had previously made applications for protection but their applications were refused. It explained it was considering information provided in those applications, some of which it has considered would be the reason or part of the reason for affirming the decision under review, subject to his comments and/or response. The Tribunal also explained the relevance of the information and the consequences if it relied on the information to make its findings. The particulars of the information, and the response provided by [Mr C], are discussed in more detail below.

    CRITERIA FOR A PROTECTION VISA

30. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

31. 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.

32. 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).

33. 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.

1. 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

2. 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

   Nationality

3. The applicant claims to be a citizen of Pakistan. He provided to the Department a copy of his birth certificate recording that he is the child of [Mr C] and [Ms D], both Pakistani citizens. The delegate recorded that he cross referenced information on the Department’s various systems and all the information supported the applicant’s claimed identity. In the absence of any evidence to the contrary, the Tribunal is satisfied the applicant is a citizen of Pakistan and it will assess his claims accordingly. There is no evidence before the Tribunal to indicate he has a right to enter and reside in any other country for the purposes of the Act.

   Does the applicant have a well-founded fear of persecution?

4. In his written application, the applicant claims to fear harm in Pakistan because his parents left Pakistan fearing persecution and harm from the Taliban as they are Shia Muslims, targeted and harmed by the Taliban. It is claimed the applicant will be harmed and/or because of Shia views. The Taliban target schools and colleges and kill students. It is claimed his parents moved to Islamabad but the authorities did not protect his parents and people were after them in Islamabad. It is claimed the authorities will not protect the applicant and he will be harmed because of the poor security situation in Pakistan. [Mr C] claimed at the hearing that the applicant may be harmed because English is his language. [Mr C] also indicated that he may be harmed because has been brought up in Australia. Also the family cannot afford quality education. He will not have a good life in Pakistan. He does not have family in Pakistan and he fears for the applicant if something happens to him, given his mental health issues.

5. The Tribunal accepts that the applicant’s parents are Shia Muslims and that they intend to raise him as a Shia Muslim. However for the following reasons the Tribunal does not accept that his parents left Pakistan because they were targeted and harmed by the Taliban.

6. The Tribunal notes that in his own protection visa application [Mr C] claimed that in November 2009 Taliban gunmen killed his father’s [relative], [a former official] in Peshawar, because he was a Shia Muslim. He claimed that in May 2011 the LeJ kidnapped two of his [relatives] and beheaded them. He claimed in September 2012 he and [Ms D] returned home to Peshawar and a week after their return they were noticed by the LeJ and followed. [Mr C] claimed that when he and [Ms D] were attending a religious ceremony, men followed them on a motorbike and fired shots at them and [Ms D] miscarried. [Mr C] claimed that his father, the [Position 1] of a Shia organisation, was outspoken about Taliban cruelty to the Shia community and was killed in October 2012. [Mr C] claimed to fear persecution by the LeJ in Pakistan.  The delegate was not satisfied [Mr C]’s claims were genuine and the RRT affirmed the decision on 4 February 2014. [Mr C] did not seek judicial review of that decision. The applicant’s parents have since claimed they moved to Islamabad but the authorities did not protect them and will not protect them if they return to Pakistan.  

7. On 16 May 2014 the applicant’s brother, [Brother B], and [Ms D] made applications for protection visas, including [Mr C] as a member of the family unit. The particulars of the claims were essentially the same as those made by [Mr C] in his application. The applications were refused by the delegate on 1 October 2014. The Tribunal (differently constituted) affirmed the delegate’s decision on 15 February 2016, also not accepting the claims that [Mr C] and [Ms D] had been targeted and harmed, or that members of [Mr C]’s family had been targeted and killed. The Tribunal formed the view that the claims and documentary evidence provided had been fabricated. Judicial review was sought and [in] July 2017 the Federal Circuit Court of Australia upheld the Tribunal’s decision. [Ms D] and [Brother B] then sought further review by the Federal Court of Australia and [in] February 2020 the FCCA’s judgement was upheld.

8. The Tribunal has considered the information provided with respect to that visa application. For the following reasons it has serious concerns that claims made in those visa applications are not reliable.

   Information about men watching [Mr C]

9. The Tribunal notes [Mr C] claimed in his own application that a few days after arriving back in Peshawar in September 2012, he and [Ms D] realised they were being watched and followed. He claimed however that in September 2012 he and [Ms D] left his home to attend a gathering and they were pursued by men on motorcycles.  At his interview with the delegate, when asked why he would choose to leave his home to attend the gathering if he knew men were watching him, [Mr C] told the delegate that they had to attend the religious ceremony but he also said he was not even sure if the people who had been watching him were actually targeting him.  He thought perhaps they may have been looking for someone else.  However [Mr C] told the RRT that, by that time, he had decided that the men who had been watching and following him were after him and that he and [Ms D] had to leave Pakistan for their safety. He told the Tribunal at the applicant’s hearing that they went out to visit [Ms D]’s family.

10. With respect to the same incident, the delegate also asked [Mr C] whether the people who allegedly fired a shot at the applicant’s parents, when they were travelling to the gathering, could have actually been trying to harm someone else.  In response, [Mr C] said that [Ms D] noticed, and he checked, that the two people on the motorcycle behind them were the ones he had seen watching them at their house.

11. The RRT recorded that, when asked if the men on the motorcycles were the same men who had been watching and following them after they arrived in Pakistan, [Mr C] said he could not see their faces clearly as their faces were covered and he could only see their beards.  He therefore did not know and was not sure if they were the same people who had been watching and following them as he did not see them.

12. The RRT recorded however that, when [Ms D] was asked why they went out in those circumstances, she said that it was important to go to the gathering and meeting particularly as the time of Muharram was approaching and [Mr C] was needed to help discuss arrangements for that. 

13. However the previously constituted Tribunal reviewing [Brother B]’s and [Ms D]’s visa applications recorded that at her hearing about her return to Pakistan, [Ms D] told the Tribunal that there had been no threats and nothing had happened to them before the incident on the motorcycle and it was only her father-in-law who was experiencing threats.

14. This Tribunal formed the view there appeared to be significant inconsistencies in this evidence. It also had concerns as to whether [Mr C] and [Ms D] would have gone out if they thought they were being watched, monitored and followed. The Tribunal invited the applicant pursuant to s.424A to comment or respond on the information, explaining that it may not accept [Mr C] would have taken the risk of leaving the house to attend a gathering if he genuinely feared that he was being watched and followed. It explained that it may form the view [Mr C]’s own evidence on this issue is inconsistent, and inconsistent with [Ms D]’s evidence.  It explained that this may lead the Tribunal to find that [Mr C] is not a witness of truth and his claims are not reliable, and it may also find that there had been no threat and nothing had happened to the applicant’s parents before the accident on the motorcycle. It explained that if it makes these findings it may not accept the claim made in the applicant’s visa application that his parents left Pakistan because they feared persecution and serious and significant harm from the Taliban; or that his parents fear he  will be killed by the Taliban because of their Shia views; or that his parents were targeted and harmed by the Taliban in Pakistan so he will not be safe in Pakistan.

15. In the written response [Mr C] stated that the applicant continues to rely on the information provided about events in 2012, and that the applicant’s parents will not be protected if they return to Pakistan. He repeated the claim that he and [Ms D] fear persecution at the hands of anti-Shia groups and the authorities cannot assist or protect them. He asserted that the evidence regarding their experiences in Peshawar is genuine and that he was being honest when he said that he was not sure if the people who had been watching him were targeting him. He repeated the claims that he and [Ms D] had been shot at when travelling to a religious gathering and that they left Pakistan to avoid harm. He stated however that the people could have been trying to harm someone else. He indicated that whatever inconsistencies there were between his and [Ms D]’s evidence could have been because of the way the Tribunal put its questions. He indicated that people are not themselves when applying for protection and his English may not have been sufficient to express in detail what actually happened. He asserted that this Tribunal is required to be lenient and accept the innocence of the parents and that their claims are genuine.

16. The Tribunal has taken this information into account. It is not satisfied however that [Mr C] has adequately addressed the inconsistencies in his own evidence. In his own written application he claimed that he and [Ms D] realised they were being watched and followed. He subsequently told the delegate that he was not sure if the people who had been watching him were actually targeting him and thought they might have been looking for someone else. However he told the RRT that the men who had been watching and following him were after him and that he and [Ms D] had to leave Pakistan. He told the delegate that [Ms D] noticed and he checked that the people on the motorcycle were the ones who had been watching them, however he told the RRT that he could not see their faces clearly as they were covered and he could only see their beards. He told this Tribunal that they went out to visit [Ms D]’s family. The Tribunal has taken into account [Mr C]’s suggestion that the inconsistencies may be the consequence of this limited English. The Tribunal observed that he was confident and comfortable in giving evidence in English at the applicant’s hearing but it accepts his level of English may have improved in the past 8 years. However it also notes interpreters assisted in [Mr C]’s and [Ms D]’s Tribunal hearings. The Tribunal is not satisfied the applicant’s parents’ level of English adequately explains the inconsistencies. It is not satisfied that the way questions were expressed was the cause of what it considers to be significant inconsistencies in his responses. It has also taken into account his concern that he was not himself and has mental health issues, suggesting there may have been some factor limiting his ability to engage in the hearing process. The Tribunal has also taken into account the evidence from his treating doctor, [Dr E], indicating [Mr C] suffers from depression and anxiety, and chronic back pain.  However it is not satisfied on the basis of that evidence that those conditions hindered his capacity to give evidence at his own hearing.

17. [Mr C] did not address the issue of concern raised in the s.4424A invitation that if the Tribunal relied on the information it may not accept that [Mr C] would have taken the risk of leaving the house to attend a gathering or meeting, if he genuinely feared that he was being watched and followed. It also notes he has now claimed that they left the house to visit [Ms D]’s family which is inconsistent with his other evidence. Having considered the claims, the Tribunal is not satisfied that [Mr C] and [Ms D] would have taken that risk, if they genuinely feared that they were being watched and followed by members of the Taliban.

18. The Tribunal has formed the view that [Mr C]’s own evidence on the issue of men watching him and intending to harm him is inconsistent and inconsistent with [Ms D]’s evidence. The Tribunal finds these inconsistencies are significant. It is not satisfied that they were being monitored, watched and followed on their return to Peshawar in September 2012. While it accepts that the applicant’s parents may have had a motorcycle accident while in Peshawar, it is not satisfied the applicant’s parents were shot at, or that they feared they were being monitored watched and followed, before they had the accident.

    Information about going to Islamabad

19. In his hearing [Mr C] told the RRT that men on a motorcycle behind him and [Ms D] fired a shot at them. He said he applied the brakes, the motorcycle skidded and they both fell. He claimed people nearby took them to hospital, [Ms D] had a miscarriage and he was discharged from hospital a few days after her. He claimed the following day they were driven to Islamabad by family and stayed at the home of relatives there, and while he was in hospital he secured seats on an early flight to Australia, departing from Islamabad.  When asked by the RRT why he and [Ms D] did not travel to Islamabad earlier, if they feared they were being watched and followed, given [Mr C] had formed the view they should leave Pakistan as soon as possible, [Mr C] said they did not travel to Islamabad for safety; they only went there to fly to Australia. However when [Ms D] was asked why they did not travel to Islamabad earlier, she told the RRT that the people following and watching them were outside the house every day so they did not think they could get away.  In contrast, when this Tribunal asked [Mr C] why there was a delay in going to Islamabad, given their fears, he said they were concerned about going to Islamabad because it was an expensive city.

20. The Tribunal formed the preliminary view this evidence was inconsistent and, if aspects were relied on, it may be the reason or part of the reason for affirming the decision. It invited the applicant to comment on this information. In the written response [Mr C] stated that the trip to Islamabad was twofold, to avoid persecution and to depart Pakistan for Australia. He claimed there is no dispute that Islamabad is an expensive city and that he and [Ms D] had to organise funds to meet the expenses.

21. The Tribunal is not satisfied this explanation adequately addresses the inconsistency in [Ms D]’s evidence, that they did not travel to Islamabad earlier because the people following and watching them were outside the house every day so they could not get away. With respect to the claim that they could not go earlier because Islamabad is an expensive city, the Tribunal notes that [Mr C] and [Ms D] were driven to Islamabad by family and were staying at the home of relatives. The Tribunal is not satisfied that their trip to Islamabad was delayed because it is an expensive city. It has formed the view that [Mr C] manufactured this claim to overcome the concern raised by the delay in their travel to Islamabad, if it was the case that they feared being harmed in Peshawar.

22. The Tribunal has concerns that [Mr C] has not been truthful and that his claims are unreliable. It is also concerned that [Ms D] has not been truthful in her reasons why she and [Mr C] did not travel to Islamabad earlier. Having considered the evidence the Tribunal is satisfied that the applicant’s parents travelled to Islamabad merely to fly to Australia and not because they were followed or harmed or feared harm.

23. The Tribunal also notes that the applicant has claimed in his written visa application that his parents moved to Islamabad but the authorities did not protect his parents and people were after them in Islamabad. This claim was not repeated at the hearing. On the evidence before it, given its concerns regarding the evidence about his parents being watched and harmed and their reasons for going to Islamabad, the Tribunal is not satisfied that people were after the applicant’s parents in Islamabad or the authorities failed to protect them. It is not satisfied this is a genuine claim.

    Evidence [Mr C] provided in his protection visa application and his statutory declaration made on 14 November 2012

24. In a statutory declaration [Mr C] made on 14 November 2012 he referred to the deaths of an uncle and [other relatives] and made general claims about the danger for Shia Muslims from the Taliban and like groups.  He claimed that, after returning to Pakistan in September 2012, he realised he and [Ms D] were being watched and monitored. He referred to the shooting incident when travelling to the gathering by motorcycle. He set out his account of having to return to Australia in fear and being told that his father was shot in his shop.  He claimed that his father was active in the Jafari movement and his father received threats.  He claimed his mother and siblings went to live with her own parents and he lost contact with them. The statutory declaration appears to imply the reasons he would be harmed by the Taliban were his father's activities and, more generally, his Shia religion.

25. [Mr C] did not mention in his statutory declaration that he was active in the Jafari movement, or involved in ISO (Imamia Student Organisation). Nor did he mention threats he received over the telephone because of those activities.  However he told the RRT that one of the reasons he was followed in September 2012, and people wanted to harm him, was because of his Jafari movement and ISO activities.  He told the RRT that extremists were aware he had returned to Pakistan in September 2012 because he was very active in the past.  Nor did [Mr C] mention in his statutory declaration that others told him the people watching and following him had been asking about him. He subsequently claimed to the RRT this was the reason he concluded they were after him and he needed to leave Pakistan.

26. When asked by the RRT to explain why his statutory declaration made no mention of those claims, [Mr C] said the statement was prepared by his former representative who was unreliable, and he only realised that content was missing at the hearing. He admitted however that it was his signature on the statutory declaration. 

27. The applicant was invited to comment on this information. In the written response [Mr C] did not address the omissions in his statutory declaration, except to comment generally that he lacks proper English and relied on assistance of friends.

28. The Tribunal has considered this response however it is not satisfied it adequately addresses [Mr C]’s omissions in his statutory declaration indicating it may have been caused by his level of English. The Tribunal is not satisfied [Mr C] would have signed such an important document without ensuring important claims were included in his statutory declaration. The Tribunal is of the view those claims were not included in the statutory declaration because they are not true. The Tribunal does not accept that [Mr C] was actively involved in the Jafari movement and ISO. This raises significant concerns for the Tribunal as to whether [Mr C] is a witness of truth.

    [Mr C] and [Ms D]’s decision to return to Pakistan in September 2012

1. [Mr C] told the Department that his [relative] was [a former official] and was killed because he was a Shia Muslim. He also claimed that two of his [relatives] were killed and beheaded because they were Shia Muslims. Despite this, while [Ms D] was pregnant with their first child, [Mr C] and [Ms D] chose to return to Pakistan from Australia. When asked by the previously constituted Tribunal about the threats her father-in-law received, [Ms D] stated she did not know when the threats began and only knew he started receiving threats after he became [Position 1] of the Shia organisation. When asked why she returned to Pakistan if family members had been beheaded and her father-in-law had been threatened, she stated she suffered homesickness, living alone in Australia, and she was depressed and wanted to share the news of her pregnancy with her family. When asked why her family did not warn her not to return, she said she did not know about the threats and they did not tell their families they were returning to Pakistan because they wanted to give them a surprise.

2. However when the previously constituted Tribunal asked [Mr C] about the decision to return to Pakistan, given relatives had allegedly been beheaded, he indicated it was a neutral decision and they did not think anything would happen to them. He stated his father began getting threats in 2012 when he was promoted to the [Position 1] position but he did not tell them about it. When asked why they would return to Pakistan if his father had been receiving threats and family members were being killed, [Mr C] stated that his family did not speak about the threats and, on being told about the pregnancy, his father told him they should visit the family in Pakistan. When asked why his father would not have warned him about the threats, [Mr C] stated that he thought the threats were directed only at his father and not at him and [Ms D]. [Mr C] stated that the family knew he and [Ms D] were planning to go to Pakistan as they had asked them to come. When it was raised with [Mr C] that [Ms D]’s evidence was that the family was not aware they were planning to return to Pakistan because they intended to surprise them, [Mr C] amended his evidence and stated that they did not tell them straight away as it was their intention to surprise them.

3. In response to the s.424A invitation to comment on this information [Mr C] repeated the claims that the grandfather “experienced serious threats and died”. He suggested the differences may be a result of the questions put by the Tribunal. He referred to his statutory declaration stating an uncle and cousin had died. However he did not address the concern raised by the information, that while claiming relatives had allegedly been beheaded, [Mr C]’s father did not warn [Mr C] and [Ms D] not to return to Peshawar. The Tribunal notes [Mr C]’s evidence is that the family told them they should return to Pakistan when they heard about the pregnancy.

4. The Tribunal is of the view this evidence casts significant doubt on the claims that [Mr C]’s family members were killed. It has concluded [Mr C]’s and [Ms D]’s willingness to return to Peshawar when [Ms D] was pregnant raises considerable doubts about the claims that [Mr C]’s relatives had received threats and were being killed because they are Shia Muslims. [Mr C] claimed at the applicant’s hearing that he questioned why his family did not tell them not to go to Pakistan. However the Tribunal was concerned that he introduced this evidence to overcome the problems raised by the suggestion that [Mr C]’s family members had been seriously harmed but his family encouraged them to go to Pakistan.

5. The Tribunal does not accept that [Mr C’s relatives] were killed because they were Shia Muslims or that [Mr C father received threats after he was promoted to the [Position 1] position of a Shia organisation. It is of the view that if this was the case [Mr C]’s father would not have encouraged his son and pregnant daughter-in-law to return to Pakistan. Nor does the Tribunal accept that [Mr C]’s father was subsequently killed. The Tribunal is of the view these claims have been manufactured.

   [Ms D]’s evidence about the applicant’s parents’ experiences upon their return to Pakistan

6. When asked by the previously constituted Tribunal if anything happened to [Ms D] and [Mr C] prior to the attack on the motorcycle, [Ms D] indicated it was only her father-in-law who had received threats. When asked if anyone had been following them or watching them, she stated she could not remember. When asked what she and [Mr C] were doing in the week before the attack she stated that they did not leave the house because of the threats received by her father-in-law.

7. The Tribunal formed the preliminary view that this information is relevant because [Ms D] and [Mr C] had previously given evidence that they were aware prior to the incident on the motorcycle that they were being watched and followed. The Tribunal invited the applicant to comment on or respond to this information.

8. [Mr C] responded in writing and did not specifically address this issue but made claims, addressed above, that inconsistencies in the evidence may have been a consequence of the evidence being affected by fear. The Tribunal appreciates that applicants may be stressed while giving oral evidence at a hearing. However it is of the view that the issue of whether [Mr C] and [Ms D] were being watched and followed on their return to Peshawar in September 2012 is so critical to the applicant’s claims that his parents were harmed in Pakistan and fear persecution at the hands of anti-Shia groups that it is reasonable to expect it to be consistent.

9. The Tribunal is of the view the inconsistencies in the evidence on this issue are significant and cast significant doubt on the reliability of the claim that [Ms D] and [Mr C] were being watched and followed on their return to Peshawar. The Tribunal is of the view this information is also relevant because the applicant is, in part, effectively relying on his parent’s claims to have been watched, followed and harmed by the Taliban in Pakistan to demonstrate why he cannot go to Pakistan.

   Claims regarding the death of the applicant’s paternal grandfather

10. It was claimed that [Mr C]’s father was a prominent member of the Shia community and promoted to the position of [Position 1] of a Shia organisation. However the Department and the previously constituted Tribunal were unable to locate any mention of him or his death which was purportedly at the hands of the Taliban. This included consulting the FATA Research Centre[1] which records all Shias killed as the result of extremist attacks. The previously constituted Tribunal noted that no documentation was provided to support the claim that [Mr C]’s father was a prominent person or that he was killed by terrorists.

    [1] The previously constituted Tribunal referred to the website of the FATA Research Centre – and noted FATA maintains a “daily brief” of all terrorism incidents in the FATA region as well as in Khyber Pakhtunkwha, including Peshawar.

11. When [Ms D] was asked during her hearing why, after two years, they had not provided any supporting documentation regarding these claims, [Ms D] said she did not know she would be asked questions about her father-in-law in her application. The previously constituted Tribunal invited [Ms D] to comment on the absence of information regarding the death of [Mr C]’s father. In response she claimed that they were unable to provide documentation such as death certificates because the family was “out of contact” and the government was unable to provide documentation such as death certificates without a letter and a blood relative being present. It was also claimed that [Mr C]’s father was not prominent countrywide or internationally but was famous only among his local people. It was alleged that a lot of Shia people are killed in Peshawar and the media does not refer to them.

12. The previously constituted Tribunal noted that a death certificate was subsequently provided and it referred to [Mr C]’s father having been the victim of a “target killing”. However the previously constituted Tribunal recorded that there was no evidence that [Mr C]’s father was a Shia leader of some prominence who was killed by Islamic extremists. The previously constituted Tribunal recorded that the FATA Research Centre maintains the reports all target killings.

13. This Tribunal formed the view this information is relevant and so invited the applicant to comment on or respond to the information pursuant to s.424A of the Act. In the written response [Mr C] stated that they had provided evidence that the applicant’s grandfather was killed in October 2012 and he was the [Position 1] of a Shia organisation, who was outspoken about Taliban cruelty to the Shia community. He claimed the grandfather experienced serious threats and inconsistencies between the applicant’s parents’ evidence happened as a consequence of the way the Tribunal put its questions to the parents.

14. The Tribunal has considered the claims about the applicant’s paternal grandfather’s death. It notes that after concerns were raised by the previously constituted Tribunal about the lack of supporting documentation, [Ms D] provided a death certificate for her father-in-law claiming he was the victim of a “target killing”. The Tribunal has taken this into account. It notes that in the written response [Mr C] claims evidence was provided that his father was the [Position 1] of a Shia organisation, outspoken about Taliban cruelty to the Shia community, however the applicant has not provided that evidence to this Tribunal. On the evidence before it the Tribunal is not satisfied the applicant’s grandfather was [Position 1] of a Shia organisation, outspoken about Taliban cruelty to the Shia community and killed as a consequence. It is finds the absence of documentation, including no record by the FATA Research Centre, supporting the claim that [Mr C]’s father was killed by extremists after becoming [Position 1] of the Shia organisation, and the provision of a death certificate only after concerns were raised by the previously constituted Tribunal, cast doubt on the reliability of the evidence. The Tribunal does not accept these claims.

15. The Tribunal is of the view this information is relevant because the applicant is, in part, effectively relying on claims that his family members have been harmed and killed by the Taliban in Pakistan to demonstrate why he cannot go to Pakistan. The Tribunal does not accept the claim made in his visa application that his family members were targeted and killed by the Taliban in Pakistan and so he will not be safe if he goes to Pakistan.

    The applicant’s family’s disappearance after his grandfather’s death

16. The applicant’s parents have claimed that members of [Mr C]’s family disappeared after his father’s death. However the previously constituted Tribunal recorded that [Ms D] had difficulty recalling when she last had contact with [Mr C]’s family. She ultimately stated that it was about two months prior to her hearing in December 2015 when her mother-in-law contacted them in Australia. She told the previously constituted Tribunal that her in-laws had been moving from place to place but she did not know where they were living. She indicated that there had been no contact with them for three years. The previously constituted Tribunal noted that when asked about the alleged disappearance of [Mr C]’s mother and siblings, [Ms D] was vague and indicated she knew very little about their disappearance or where they were during that period.

17. However when [Mr C] was asked at the hearing in December 2015 about contact with his family, he indicated that after his father’s death they were speaking to the family but one day no one answered and it was only recently that they had contact with them again. He claimed that he spoke to them and they were in Iran. When it was put to him that [Ms D] indicated there had been no contact for three years, which was different to his evidence, [Mr C] stated that [Ms D] would not have known where they were living as his mother was getting threats and had to move to different parts of the country. When asked why [Mr C]’s mother could not have used a mobile phone to contact [Ms D]’s family, he stated that his mother and brothers were jobless and had no one to help them. He also stated that the families did not know each other. However [Ms D] had told the previously constituted Tribunal that the applicant’s parents’ marriage was arranged.

18. In response to the written invitation to comment on these apparent inconsistencies the applicant’s father commented that inconsistencies in the applicant’s parents’ evidence could have happened as a consequence of the way the Tribunal put its questions. The Tribunal has taken this response into account. He also told this Tribunal that he provided evidence that his mother had gone to Iran.  However the Tribunal has concerns that the inconsistencies about the contact with [Mr C]’s family and their knowledge of his family’s whereabouts cast doubt on the claim that members of [Mr C]’s family disappeared after his father’s death. The Tribunal also finds it unpersuasive that [Mr C]’s mother could not contact [Ms D]’s family because the families did not know each other, given the applicant’s parents’ marriage was arranged. The Tribunal does not accept that the applicant’s parents’ families did not know each other. The Tribunal does not accept the applicant’s father’s family were unable to make contact with his parents in Australia for three years. It finds these claims have been manufactured. Nor does it accept that [Mr C]’s family had to flee to Iran. It has concerns this claim has been made to embellish the claim that the applicant’s parents have no family support in Pakistan.

19. The Tribunal is of the view this information is relevant because the applicant is, in part, effectively relying on claims that [Mr C]’s family members have been harmed by the Taliban in Pakistan, and had to flee to Iran and go into hiding, to demonstrate why he cannot go to Pakistan.

20. The Tribunal does not accept the claim made in the applicant’s visa application that [Mr C]’ss family members were targeted and killed by the Taliban in Pakistan, and surviving members had to flee to Iran, and so the applicant will not be safe if he goes to Pakistan.

    Decision on [Mr C]’s protection visa application

21. On 4 February 2014 the RRT affirmed the delegate’s decision to refuse [Mr C]’s protection visa application, finding that there was no credible evidence that he suffered harm in Pakistan. [Mr C] did not seek judicial review of that decision.

22. The applicant was invited to comment on this information. In the written response [Mr C] indicated that it was regretted that he and [Ms D] failed to lodge an application for judicial review. He indicated however that this is a separate matter to the applicant’s claims and should not lead this Tribunal to not accept the applicant’s claims.

23. While the Tribunal accepts that it is reviewing the applicant’s case, and not that of [Mr C], the information is relevant because the applicant is, in part, effectively relying on [Mr C]’s claims to have been harmed by the Taliban in Pakistan to demonstrate why he cannot go to Pakistan.

    Decision on [Ms D]’s and [Brother B]’s protection visa applications

24. On 15 February 2016 the previously constituted Tribunal affirmed the delegate’s decision to refuse [Ms D]’s and [Brother B]’s protection visa applications, not accepting any of the claims discussed above. [Ms D] and [Brother B] sought judicial review of that decision and ultimately [in] February 2020 the Federal Court of Australia upheld the Federal Circuit Court of Australia’s judgement to uphold the previously constituted Tribunal’s decision.

25. The applicant was invited to comment on this information. In the written response [Mr C] did not comment on the FCA’s judgement.

26. While the Tribunal accepts that it is reviewing the applicant’s case, and not that of [Ms D], the information is relevant because the applicant is, in part, effectively relying on [Ms D]’s claims to have been harmed in Pakistan to demonstrate why he cannot go to Pakistan.

    Conclusions on the parents’ claims of past harm

27. Having considered all the evidence before it, including information provided in [Mr C]’s and [Ms D]’s own protection visa applications and reviews, the Tribunal does not accept that [Mr C] and [Ms D] were monitored, watched and/or targeted by extremists in Pakistan in September 2012. It does not accept that [Mr C]’s family would have encouraged their return if it was the case that [Mr C]’s father had been threatened and harmed, and other family members had been threatened and beheaded. It is of the view their return to Pakistan in September 2012 indicates [Mr C]’s family members were not harmed, shot at and/or beheaded as has been claimed. The Tribunal does not accept [Mr C]’s father was threatened, harmed, targeted or killed by extremists. While it accepts [Mr C] and [Ms D] may have had a motorcycle accident, it does not accept they were shot at. It does not accept they fled to Islamabad, or that they were followed by Taliban there and refused protection. It finds they went there merely to return to Australia. The Tribunal has found [Mr C]’s failure to mention in the statutory declaration made on 14 November 2012 that he was involved in the Jafari movement and ISO casts serious doubt on those claims. It does not accept his claims about that involvement. Nor has it accepted that [Mr C]’s family fled Pakistan for Iran and lost contact with the applicant’s parents for a period. The Tribunal is of the view the applicant’s parents’ claims to have been harmed in Pakistan, and the claims that members of [Mr C]’s family have been harmed and/or killed have been fabricated.

28. Accordingly the Tribunal does not accept the applicant’s parents have an adverse profile in Pakistan and have been targeted by extremists and the Taliban because they are Shia. Nor does it accept that there is a real chance the applicant will be subjected to serious harm should he go to Pakistan in the reasonably foreseeable future because of his parents’ profile in Pakistan.

29. At the interview with the delegate in [Sister A]’s matter [Ms D] indicated that, at the time, she did not have much contact with her family because they are threatened by the Taliban and they hide. However this claim was not repeated at the applicant’s hearing or in the written material provided after the hearing. Given its concerns about the reliability of any of the other claims of past harm, the Tribunal does not accept that [Ms D]’s family was threatened by the Taliban or that they were in hiding.

    Harm due to Shia beliefs and general security concerns

30. The applicant has claimed he will be harmed because of his Shia views. The Tribunal accepts the applicant’s parents intend to raise him as a Shia Muslim. The Tribunal notes the applicant is [age] years old so it has some doubt that he will promote his religious views in the foreseeable future. Nevertheless it accepts he may be identified as a Shia Muslim should he go to Pakistan in the foreseeable future.

31. The Tribunal discussed with the applicant’s father the country information indicating the situation for Shia Muslims in Pakistan has improved in recent times, indicating Shia are well integrated in Peshawar, where the applicant’s parents originate. [Mr C] agreed the situation has improved but claimed in Peshawar the Taliban are still planning to harm Shia Muslims hence his family’s move to Iran. He claimed violence is underreported because it would give Pakistan a bad name. While acknowledging the circumstances for Shia Muslims are relatively stable he was concerned that anything could happen in the future. The Tribunal has taken this into account but notes DFAT reports:

    Pakistani Shi’a live throughout the country in urban centres, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. While Shi’a are not a majority in any of Pakistan’s four provinces, they are a majority in the autonomous region of Gilgit-Baltistan.

    Significant numbers of Shi’a live in Peshawar, Kohat, Hangu and Dera Ismail Khan in Khyber Pakhtunkhwa; in Kurram and Orakzai districts in the former FATA; in and around Quetta and the Makran coastline in Balochistan; in parts of southern and central Punjab; and throughout Sindh. Although some Shi’a live in enclaves in these cities (see Hazaras and Turis), Shi’a and Sunni communities are generally well integrated.

    …

    Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups (see Hazaras and Turis). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.[2]

    [2] DFAT Country Information Report Pakistan, 20 February 2019, page 35 and 37

1. [Mr C] has raised concerns that the authorities cannot provide the applicant with security and he will not be given state protection. He has also claimed that the Taliban targets schools and kills college students. The Tribunal accepts that [Mr C] is concerned for the applicant’s safety in Pakistan, and specifically in Peshawar from where he originates. It also accepts there have been sectarian attacks as reported by DFAT:

   The frequency of sectarian attacks has reduced annually since the launch of Zarb-e-Azb and the NAP in 2014. The South Asia Terrorism Portal reports 16 incidents of sectarian violence killed 231 people and injured 691 in 2017, compared with 131 incidents killing 558 and injuring 987 in 2013 (2018 data not yet available). This trend continued in 2018, with a 40 per cent reduction in sectarian violence (12 incidents) compared to 2017.[3]

   [3] DFAT Country Information Report Pakistan, 20 February 2019, page 21

2. However DFAT also reports that the highly visible presence of paramilitary rangers has led to a significant decrease in sectarian violence and that Khyber Pakhtunkhwa[4] has seen a significant reduction in militant violence in recent years. According to the SATP, one incident of sectarian violence in 2017 killed three people, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. Overall, DFAT assesses that Khyber Pakhtunkhwa has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province. The Tribunal also notes DFAT’s report that the Pakistani military provides escort services for Shia pilgrims to protect them from attacks, significantly mitigating the risk of violence.[5]

   [4] Peshawar is the capital of the province of Khyber Pakhtunkhwa

   [5] DFAT Country Information Report Pakistan, 20 February 2019, page 37- 38

3. The Tribunal must consider whether there is a real chance the applicant will suffer serious harm should he go to Pakistan in the foreseeable future. The Tribunal has not accepted the claims that the applicant’s parents have come to the adverse attention of extremists in the past and as a consequence the applicant may be harmed in the future. It does not accept the applicant’s parents will have a profile in Peshawar or Pakistan and they will draw the adverse attention of extremists such that they will face a real chance of harm if they return to Peshawar in the foreseeable future. Accordingly the Tribunal is not satisfied the applicant will face a real chance of harm if he goes to Peshawar or Pakistan in the foreseeable future because he is a Shia Muslim. Having considered the country information the Tribunal is satisfied the chance of him being harmed in a terrorist attack targeting Shia Muslims is remote.

   English speaking, born and grown up in Australia

4. [Mr C] has claimed the applicant cannot go to Pakistan because he was born in Australia, speaks English and is accustomed to a different culture.

5. Based on his birth certificate the Tribunal accepts the applicant was born in Australia. There is no evidence to suggest he has gone offshore since his birth. The Tribunal is of the view, given his age, the applicant’s exposure to Australian culture is somewhat limited as he has not commenced school.  The Tribunal notes however that the applicant’s parents are from Peshawar and it is satisfied, should he go to Peshawar, it will be with his parents and he will be supported by them to adjust to any cultural differences and to learn the local languages, including Urdu, which according to the Tribunal’s records, his mother speaks. The Tribunal is not satisfied the applicant will face a real chance of harm if he goes to Peshawar in the foreseeable future because he was born in Australia, has been exposed to Australian culture and speaks English.

   Inadequate education facilities

6. [Mr C] has claimed the applicant cannot go to Pakistan because the Taliban target schools and his parents cannot afford to send him to a private school. He is concerned the education facilities in Pakistan are not as good as Australia’s. The Tribunal notes from the DFAT report that:

   Article 25A of the Constitution states that the ‘State shall provide free and compulsory education to all children of the age of five to sixteen years,’ but low budget allocations, lack of capacity and corruption affect the quality and availability of education. Education expenditure in Pakistan amounted to 2.8 per cent of GDP in 2017, compared with the South Asia regional average of 2.5 per cent (2016), and 5.2 per cent (2014) in Australia. Provincial governments are responsible for education services, and budget allocations and quality vary greatly across the country.

   …

   Private institutions are also available, and afford a degree of flexibility to applicants as official documentation, such as Computerised National Identity Cards (CNICs, see Computerised and Smart National Identity Cards), are not always necessary for enrolment. While private schools historically catered to wealthier families, they have become increasingly popular amongst poorer populations, as lower-cost private options have expanded in recent years. More than a third of all Pakistani students are now enrolled in private schools, and private tuition can average as low as under USD5 (AUD6.9) a month in rural villages, a small percentage of average household income.

7. The Tribunal accepts the applicant’s father wants the applicant to receive a high standard of education. It notes that the applicant’s parents are both tertiary educated and it is satisfied they will prioritise the applicant’s education as best they can. It is satisfied the applicant will have access to education until he is at least aged 16. The Tribunal is not satisfied the applicant will be deprived of an opportunity to be educated. Nor is it satisfied the applicant will face a real chance of serious harm in the event the standard of education available to the applicant in Pakistan is lower than that he would receive in Australia.

100.   With respect to the claim that the Taliban target schools and kills college students, the Tribunal notes that the applicant is aged [age] and so will not be attending college in the foreseeable future. It notes from the DFAT report that after the attack on the Army Public School in December 2014 the authorities introduced a National Action Plan in order to confront the insurgent threat with the aim of reducing the risk of terrorist attacks and monitoring extremism. Overall the Tribunal is not satisfied there is a real chance the applicant will be killed at school if he returns to Pakistan in the foreseeable future.

Harm due to lack of support

101.   [Mr C] has raised concerns that the applicant will face harm because he will not be able to work, they will not have housing and there will be no family support because his family is in Iran and [Ms D]’s family will not support them. He was concerned that the applicant will suffer harm as a consequence of relocation, the family’s financial instability and the possibility that something will happen to his parents.

102.   The Tribunal notes the applicant’s parents are both tertiary educated. It notes [Mr C]’s evidence that he has a [Degree 1] from [University 1] and that he worked in the family’s [business]. It also notes he completed a [Certificate Course 1], a [Diploma Course 1] and a [Certificate Course 2]. He has worked in Australia at a [business], and as a [Occupation 1], a [Occupation 2] and a [Occupation 3]. He was working as a [Occupation 2] and in a [business] prior to the COVID19 lockdown. [Ms D] also has tertiary qualifications. Both are fluent in English. The Tribunal also notes that DFAT has reported there is no evidence of systemic discrimination against Shia in gaining employment in the public service, police, military or private sector.[6]  [Mr C] also indicated to the Tribunal that they could live in the family home if they return to Pakistan.

[6] DFAT Country Information Report Pakistan, 20 February 2019, page 36

103.   [Mr C] has indicated that his family cannot support them because they now live in Iran. He also indicated in the written response to the s.424A that [Ms D]’s family will not support them because their culture does not allow it. The Tribunal is not persuaded that [Ms D]’s family would not provide them with any support while the applicant’s family settles in, in the event his family go to Pakistan in the foreseeable future. In any case the Tribunal is satisfied the applicant’s parents will be able to house the applicant and secure some employment such that the applicant will be safe and able to subsist in Pakistan. It notes [Mr C] has indicated that his panic, stress and anxiety may lead suicidal ideation. It notes however that [Dr E] has not recorded that [Mr C] has experienced suicidal ideation. [Mr C] has provided evidence that he consults appropriate services such as [Dr E] and the community mental health team when he is stressed and anxious. The Tribunal is satisfied he will do this if he experiences difficulties should the family return to Pakistan in the foreseeable future and that there are psychological support services available in Peshawar.[7] It is not satisfied there is a real chance the applicant will suffer serious harm should [Mr C] become unwell in Pakistan.

[7] For example, Khyber Teaching Hospital Peshawar has mental health services KTH Clinical Services Page

Police and government corruption

104.   [Mr C] raised general concerns that police and government corruption will result in the applicant suffering harm. DFAT reports that corruption is common and widespread but government efforts have reduced the incidence of bribery and fraud.[8]

[8] DFAT Country Information Report Pakistan, 20 February 2019, pages 11 and 71

105.   The Tribunal notes the applicant is aged [age]. It is not satisfied he will come in contact with the authorities in the foreseeable future such that he will be put in a position where he will be expected to pay bribes, if he goes to Pakistan in the foreseeable future.

Conclusion on well-founded fear of persecution

106.   The Tribunal has considered the applicant’s claims both individually and cumulatively. Having considered all the evidence the Tribunal is not satisfied there is a real chance that the applicant will be subject to serious harm in Peshawar should he go to Peshawar in Pakistan in the reasonably foreseeable future. The Tribunal is not satisfied, therefore, that he has a well founded fear of persecution because of his Shia religion or because of actual or imputed political opinion as being opposed to anti-Shia extremists; or as a result of being [Mr C]’s son or a member of [Mr C]’s family; or on the basis of being born in Australia, and speaking English. Nor is the Tribunal satisfied that he has a well founded fear of persecution for any other reason in s.5J(1)(a).

107.   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).

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that she will suffer significant harm?

108.   The Tribunal has also considered whether the applicant meets the complementary protection criteria set out in s.36(2)(aa). The Tribunal finds that the receiving country for this purpose is Pakistan. The Tribunal has not accepted the applicant’s claims, made by his parents, to fear harm at the hands of the Taliban or extremist groups. It has not accepted his parents or [Mr C]’s family members have been subjected to attacks or targeting by the Taliban or other extremist groups. The Tribunal accepts however that [Mr C] is concerned about the family returning to Pakistan because of the unstable security situation. He also wishes for the applicant to be educated at the higher standard, and in the relative safety, of Australia.

109.   The Tribunal is satisfied that if the applicant is removed from Australia to Pakistan, it will be with his parents and other siblings. Accordingly it is satisfied that he will have the support of his parents who are educated and, on [Mr C]’s evidence, have housing in Peshawar.

110.   The Tribunal has found that there is not a real chance that the applicant will not have access to adequate education in Pakistan. It has also not accepted that the family will not be able to subsist upon their return, given the applicant’s parents’ qualifications and his father’s employment history and the availability of a family house. It is not satisfied [Ms D]’s family will not provide them with any support should they be removed from Australia to Pakistan.  The Tribunal has not accepted that the applicant will be unable to access education or that his family will be without income and family support to assist them to relocate to Peshawar in Pakistan. It is not satisfied [Mr C] will not seek treatment if his panic and anxiety cause him to consider self harm. Accordingly, the Tribunal is not satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm.

111.   The Tribunal is not satisfied, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Pakistan, there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.  Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Australia to Pakistan, there is a real risk he will suffer significant harm. Accordingly, the Tribunal finds the applicant does not meet the complementary protection criteria set out in s.36(2)(aa) of the Act.

Conclusions

112.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Denise Connolly
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.

…