1833941 (Refugee) - [2024] AATA 1379

1833941 (Refugee) [2024] AATA 1379 (7 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sousan Oboodi
CASE NUMBER:  1833941
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:7 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 February 2024 at 11:00am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia – sectarian violence – general criminal violence – business closed under pressure from Sunni militants – country information – lived close to Afghan communities – extrajudicial violence – blasphemy laws – association and attendance of particular Shia mosque – reasonable behaviour modification – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
EJB18 v Minister for Immigration & Anor [2020] FCCA 3170
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 November 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are citizens of Pakistan, applied for the visas on 3 March 2015. The delegate refused to grant the visas on the basis that they doubted the genuineness of many of the documents submitted, found that they were not Shia but Sunni, identified numerous inconsistencies that led to questioning the credibility of the applicants and found that the applicant had lied about his past regarding a stay in [Country 1]. Based on what was accepted, the delegate found that the applicants did not face a well-founded fear of persecution or a real risk of significant harm.
The applicants appeared before the Tribunal on 23 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The applicants were 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
The applicants’ background
The applicants are a family of five of whom only two of the three children are a part of this application. The parents, the first and second name applicants, were born in Karachi, Pakistan, and the children in Australia. The first named applicant’s circumstances were the basis of the initial application.
The first named applicant (“the applicant”) is a [age]-year-old male who abides by the Shia interpretation of Islam.
His extended family currently live in [Area 1], Karachi where he had lived prior to departing for Australia. This address is consistent with the addresses provided on all of the documents submitted to the Tribunal. He said that his family moved there in 2011 from Karimabad. He described his current area as being a Shia society where Shia come to practice their faith.
We discussed the schooling in the area in which he grew up which he described as a Shia area. He said that more schools are being established now but when he was young, he had to travel up to twenty kilometres from his then house in [City 1] because he was being teased for being Shia. He said that he and his relatives would be collected by a bus and taken to the school.
We discussed schools in the area that his family currently lives in noting that on Google Maps within a circumference of 3 kilometres there were 11 schools. He believes that even in majority Shia areas there are no Shia majority schools but confirmed that it is possible that the situation has changed since he was there.
The second named applicant also grew up in a Shia area, [Neighbourhood 1], which at that time wasn’t majority Shia but since then has an increased portion of Shia compared to when she lived there. It neighbours a major Shia area, [Neighbourhood 2]. She went to the same school from Year 5 through to her graduation. Following her completion of high school, she graduated from a government college with a Bachelor [degree].
The applicant described [Area 1] as being some [number]km away from where many Afghans lived, [Area 2]. Beyond [Area 2], on the other side of the Afghan community area, is where the Shia martyrs are buried. He said that when they travel to cross the Afghan area their people are targeted by the Sunni extremists among them.
I noted that the government is pushing out hundreds of thousands of Afghans from Pakistan and that the situation is unlikely to be the same as it was when he was there last.[1] He said that many of those being deported are from other provinces as the Afghans are distributed throughout Pakistan. He said that others remain in Karachi, having changed their identity documents or are hiding there.
[1] >
The applicant graduated from high school in 2007. He said that he did ‘pocket money’ jobs until he went to [Country 1] in about 2008 or 2009. He stayed there through to 2010 and then remained in Pakistan for a year and a half helping his father with their [business].
In November 2011 the applicant arrived in Australia. In 2013 he returned to Pakistan twice staying nearly two months in total. In 2014 he returned to Pakistan staying nearly three weeks. The applicant’s last student visa was cancelled in February 2015. He lodged this application for protection in March 2015.
The applicant said that his father is an activist community member as are his brothers. They are active in helping and serving the Shia community. As a result, and because he is Shia, the applicant believes that his father was targeted with threats to close his automotive business.
Threats and violence
The applicant described his experiences of threats and violence.
In March 2013 the applicant was in a mosque when he heard a shot that had been fired killing a community member known to him. He did not see the murder. It was not claimed that the applicant was a target in this incident.
In April 2013 he was riding his motorbike on his way to see a doctor and believed that some people were following him. He diverted away from the doctor, and nothing happened.
In August 2013 the applicant returned to Pakistan for his marriage.
The applicant claims that on the 16 August 2013 he received a threat that warned him not to support the building of the Qasr-e-Abu Taleb Mosque and imambargah (a congregation hall for Shia usually attached to a mosque). He explained that his father supported by the applicant and his brothers along with other community members were helping to build a Shia mosque and imambargah in an area that has a strong presence of the Sunni militant group, Sipah-e-Sahaba Pakistan (SSP). He said that community members are afraid of helping to build that mosque for fear of being targeted by the SSP. The location of Qasr-e-Abu Taleb Mosque is about a [number] minutes’ drive from where the applicant lived most recently and where his family members continue to live.
[In] September 2013 while in a shopping centre car park he claims that he was fired at. A First Instance Report (FIR) was provided to the Tribunal relating to this incident. In summary the applicant claims that he went to a shopping centre in the afternoon and when returning to his car two ‘boys’ started firing at him. He described going behind his car to seek cover and in the interim others came and the boys ran away.
In February 2014 the applicant described being shot at by men on motorbikes while driving his car. The applicant provided a FIR which described this incident. The incident occurred in the evening around 9pm when he was returning from his wife’s family home together with his wife. He said that it wasn’t busy at the time and it was dark as there were no lights. He slowed to do a U-turn on a highway known as [Highway 1], when two motorcyclists passed his car gazing at them and then chased the car and fired at it leading to broken glass and injuries. He acknowledged that it was a dangerous area.
He described the journey from his wife’s family home to the location of the incident as taking about 5 minutes of driving on other streets and then entering onto [Highway 1] before having to make a U-turn to head home.
I suggested that it sounded like a random attempted robbery. He said that they didn’t try to take anything. He connected this incident to the threats that he received regarding his participation with the Qasr-e-Abu Taleb mosque and imambargah. His wife responded at the hearing that if someone wants to take something from you, they stop in front of the car, take what they want and only if you don’t comply do they then fire. However, in this situation they didn’t try to stop the car and instead just fired shots directly at them.
In another incident in February 2014 the applicant claimed that in the early afternoon he left his house and after reaching a street corner some people in a car fired at him. He said that he laid down on the ground and was injured in his foot. He lodged a complaint to the police about this incident, a copy of which was provided to the Tribunal.
In March 2014 the applicant claimed that while he was at Qasr-e-Abu Taleb mosque a group of three people came on bike to him and others and told them to stop supporting the centre. In the FIR he provided, the situation is described as some people coming to the door of the mosque and firing. The FIR states that the applicant was injured but survived as they hid behind a door.
In the same month the applicant claims that his father received a threat regarding his shop.
In May 2014 a friend of his who was the son of a caretaker of an imambargah was killed. The applicant provided a news report of this incident.
In 2015 the father was threatened twice with demands to close his [shop]. A complaint to the police was submitted to the Tribunal. The complaint states that the father has been receiving threats from ‘unknown persons’ to shut down the business. He wrote that two persons with guns came to his shop and threatened him saying that no Shia can run the business and that if he doesn’t close it he will be killed. He claimed that his father was targeted because he was Shia and an activist.
The applicant explained that another Shia owning a shop in the same area was also threatened and decided to close the business at around the same time.
He said that in October 2015 his father was attacked by gunmen. He provided an FIR which together with oral evidence detailed the incident. The father was returning home when two motorcycles with four riders came alongside and shot at him. He fell off his motorbike and was injured in the leg and fell unconscious. When he came to, his motorbike was missing. I asked if they wanted to kill him why wouldn’t they have, to which he replied that sometimes they just want to harass people.
According to documents submitted, the applicant’s father had his car stolen from a market in February 2016 during a violent confrontation.
Other evidence
The applicant described his work with two charities, [Organisation 1] and ‘[Organisation 2]. He said that the former is dedicated to managing the donations used to build the Qasr-e-Abu Taleb mosque whereas the latter is a large organisation with many chapters that provide community support particularly during Shia events. The type of activities they do include helping to park cars and event security. The applicant said that he volunteers for them during Muharram and Ashura.
The applicant detailed the last incident as being in September 2018 when his brother was attacked while returning from a religious gathering. He claims that while he was walking four people on two motorbikes reached him and started shooting at him from ‘some distance’. He was not hit, and police quickly arrived on the scene.
The second named applicant (“the wife”), provided evidence about her experiences. She said that her father was attacked by gunmen in July 2009. A FIR was available to the Tribunal regarding this incident. The incident occurred as he was approaching his office and one person walking in the same area fired at him. He was hit and took himself to the hospital.
The second incident that the wife described occurred in February 2013 when four people including the wife were in a vehicle just after midnight on [Highway 1] without other vehicles on the road and a motorcycle with three people on it reached them as they slowed to make a U-turn. A man came off the bike and with a pistol smashed the side mirror threatening them verbally and then firing a shot that hit one passenger in the arm and another in the leg. The father drove away and subsequently sought medical attention at a hospital where the FIR was written. A discharge summary from a hospital was provided.
The wife implied that this was a targeted attack and, in some way, associated with her father being fired from his job a year earlier. She claimed that it was very quiet at the time, no traffic and so she believes that they were easily identifiable. She claimed that Shia, including her father, were being sacked from [Company 1] and that he had sued his employer and won but arising from the friction at her father’s work was an animosity that led to him being targeted.
Then in June 2014 the wife’s father was attacked by three men one carrying a pistol as he was going to meet a friend. They beat him until others came to the area and the men fled. The FIR linked that attack to the father being fired from [Company 1] and a supposition that management were behind the attack as he had an ongoing dispute with them.
A complaint letter addressed to the police outlined an attack on the wife’s brother that occurred in August 2013. The complaint letter indicated that it was an attempted kidnapping.
The wife said that her father can’t freely practice his religion. She said that he used to have a gathering of upwards of 50 people for majlis, but arising from his fears, now only very close relatives come. He said that they used to use tents outside for the majlis where men would meet and women would go inside, but now everything has to be undertaken inside.
The following relevant supporting documents were available to the Tribunal:
a.An undated letter from the [office bearer] of Majid-o-Imam Bargah at the Qasr-e-Abu Talib Mosque stating that ‘we condemn the attacks on you and your father’ along with praising the applicant and his father for the work they have done.
b.A letter from [Organisation 3] stating that the applicant is a full member, that he has supported them financially and through volunteering and that he is an active member.
c.A letter from [Organisation 2] dated 3 March 2013 acknowledging his work for them, noting that he had been attacked for being Shia.
d.An undated certificate from the [Organisation 2] stating that the applicant’s father and brothers continue to be active members of the association.
e.A letter dated 20 February 2014 from [Organisation 1] which thanks him for his work and notes that he received threats to his life.
I noted that there was a mention among submissions of the use of blasphemy laws in Pakistan. I noted at the hearing that the representative’s submission indicated that a very small number of people are accused of blasphemy. I said that he isn’t a public critic of Sunni Islam, and that it would seem highly unlikely that a situation would arise in which he would be accused of blasphemy. He responded that security agencies can pick up anyone, but he acknowledged that his profile is not high.
When asked about any claims relating to the children, the wife responded that she doesn’t want them facing the same struggles they did noting that even at school Shia are looked at differently and related the children’s situation to that of her and her husband.
The applicant said that his children don’t speak Urdu very well. I noted that there are millions of Pakistanis who live overseas and then they come back.[2] He responded that it is different because of their specific fears that they face arising from being Shia.
[2] Pakistan: Migration Snapshot August 2019, International Organisation of Migration, available at type="1">
The applicant has continued to be a practising Shia while in Australia. The nature of the evidence regarding the applicant’s activities in Australia reinforce the view that they are practising Shia, but do not raise any additional claims.
In considering the applicants’ evidence I accept that they are Shia, that they have lived their lives in Pakistan as described including encountering the violence detailed in the evidence. But in considering the question of whether any of the violence was targeted for reasons of being Shia and in parallel associated with their activities, as claimed, I will consider each individually.
It is not in dispute that the March 2013 incident did not target the applicant as he was not in the immediate vicinity of the attack. I do not accept that the murder of the man in the mosque was only because he was Shia as a Shia mosque is a place where many Shia come and yet only one was targeted.
The April 2013 suspicion of someone following him did not lead to an adverse incident. His suspicion may have been grounded or not. Noting that there is no other claim of violence to him or his family during this period, I find that no one was following the applicant.
A few weeks after his second return to Pakistan in August 2013 the applicant said that he received a threat warning him not to support the building of the Qasr-e-Abu Taleb Mosque and imambargah. Then [in] September 2013 the applicant claimed he was shot at while in a car park but managed to hide behind his car and avoid being killed. Although I have serious doubts that the shooting in the car park was targeted noting that he was not injured and that he lives some [distance] away from the Qasr mosque where any attack would be more feasible, but due to the proximity of timing I accept that the two are related.
In February 2014 the applicant described being shot by men on motorbikes while driving his car on [Highway 1]. The applicant described the area as being dangerous, unlit and not busy at the time. That he had to slow down to complete a U-turn adds opportunity for any would be assailants.
The applicant described his wife’s home as being several minutes away from the highway, a journey along streets that would have been known to any potential hit-squad waiting for them to make the journey home, yet they were not attacked as they were leaving the home or driving along the residential streets but instead they chose the highway for the attack running the risk of the applicants taking a detour or making another stop.
That the attackers did not proceed in a manner the wife would expect of criminals does not mean that they were not criminals. While noting the applicants’ responses about whether this was simply criminal activity, I nevertheless find that this was not a targeted attack but an opportunistic criminal action. I find that their faith had no bearing on being the victims.
In the other February 2014 incident when he was shot at on the street there is no evidence to support a view that he was targeted. If he was targeted to be killed, the men were in a car, and he was walking. Yet the only injury sustained from shots fired was to his foot. No effort was made to finish the job which weighs heavily against a view that it was an effort to kill the applicant. Alternatively, if the purpose was to send a message, there was no claim of a message being sent. No words were shouted. No warning was subsequently made that referenced the attack. Noting the below mentioned country information about the situation around that period and particularly in Karachi at the time when there was considerable violence, I find that this attack was an act of random violence.
In March 2014 while the applicant was at Qasr-e-Abu Taleb mosque armed men came and demanded that work on the Shia mosque stop. Threats were made, shots were fired. I accept that this was targeted specifically at those involved with the Qasr-e-Abu Taleb mosque at the time.
I accept that the applicant’s father received the threats as described regarding a demand to close the shop. I accept that it was because he was Shia but not because his specific activities as a Shia, noting that another Shia shop owner was also required to close their shop.
In May 2014 a friend of his who was the son of a caretaker of an imambargah was killed. The applicant provided a news report of this incident. I accept that this occurred. The news article quotes a police officer stating that the murder appears to be as a result of sectarianism. I accept that it was.
Regarding the incident involving his father in October 2015 I note that despite being shot and falling off his motorbike and the attackers coming close enough to take the motorbike they committed no further harm to his father. Considering the father was left alone, while the motorbike was taken and noting the insecurity in Karachi at the time, I find that this attack was general criminal activity.
According to documents submitted, the applicant’s father had his car stolen from a market in February 2016 during a violent confrontation. The father was not claimed to have been injured during this incident. I find that this was opportunistic criminal activity.
Regarding the last incident involving his brother in September 2018 I accept that it was sectarian in nature but that the brother was not individually targeted considering that there is no claim that he was targeted before or after, that there were any threats or that he was actually hit by the bullets.
I accept that in the July 2009 attack on the wife’s father he was targeted, it is not clear for what reason. I give the applicants the benefit of the doubt and accept that his Shia faith played some role.
Regarding the other incidents recalled by the wife there are no claims and no evidence that the issues that are creating troubles for her father would put the daughter at risk. The events were presented in the context of the perceived widespread targeting of Shia.
I find that the [Highway 1] incident that occurred in 2013 when the wife and her father along with other family members were in a vehicle making a U-turn was an opportunistic criminal action for the same reasons given in making the same finding when a similar situation was encountered on the same road by the applicant only a few months later.
Regarding the June 2014 attack, it is implausible that what was described as an employment issue escalated such that a hit squat was hired to follow the wife’s father and then to beat him but not mention anything about ceasing his case against his former employer. As there is no indication that would suggest that he was targeted for reasons of being Shia and noting the poor security situation in Karachi at the time, I find that it was a random attack that may be sectarian or simply opportunistic criminal activity.
A complaint letter addressed to the police outlined an attack on the wife’s brother that occurred in August 2013. This was accompanied by a hospital discharge form showing a gunshot injury. I accept the description of this event as an attempted kidnapping and that it is representative of the situation in Karachi in 2013 but do not accept that there is any link between what happened to the brother of the wife in 2013 to the situation of the applicants in 2024.
In summary, I have accepted that associations and activities at Qasr-e-Abu Taleb mosque have led to the applicant facing threats and harm. I have accepted that in the past the applicants have been victims of general criminal activity. I accept that the father of the wife has in the past had some tensions with his former employers, but I do not accept that they carry over to the applicants. I also accept that the father of the applicant was pressured to close his business for reasons of being Shia. I accept that there was sectarian violence that impacted the applicants and their family members.
Discussion of Country Information
I presented to the applicants data from the South Asia Terrorism Portal regarding attacks on Shia. I noted that from 2009 through to 2015 there was considerable insecurity, particularly in Karachi, and specifically sectarian violence targeting Shia, rising to 445 deaths in 2013. But since then throughout the country of over 220 million there have been few incidents with civilian Shia being targeted. Over the last ten years the number of deaths remain in double digits and in some years there are zero civilian Shia targeted deaths. I noted that of the 14 Shia deaths in 2023 all but one was killed in the volatile Kurram district which borders Afghanistan. I put to him that the data appears to suggest that the situation for Shia could be described as ‘safe’. There being no evidence before the Tribunal that would suggest the situation for Shia will change into the reasonably foreseeable future, I find that the designation of ‘safe’ will continue into the reasonably foreseeable future.
The applicant responded that Shia have been targeted since 1947 and while he acknowledged that the numbers may be down for a few years he believes that the situation can rapidly change and that COVID contributed to the low numbers. The wife said that they often hear about attacks and that the situation fluctuates. She said that there being 2-3 years of calm is not a reliable measure.
I noted that country information had been provided about extrajudicial killings which are not racial or sectarian. I noted that they are either arising from police seeking to eliminate criminals or cover up excessive force or targeting journalists.[3] I put to the applicant that their profiles are not aligned with those examples. I noted that it amounted to about a few hundred deaths in each province. The applicant acknowledged that he would not be targeted. The applicant added that a few hundred each year adds up and it varies between provinces. He said that an example of this that he witnessed was in 2008 when the Rangers came in response to some violence and instead of protecting against the perpetrators, they attacked both groups. The applicant acknowledged that he wouldn’t be targeted by the police, but he said Shia are the majority who are disappeared and there are many, official estimates being as high as 3,500 citizens who have disappeared and remain unaccounted for.[4]
[3] Commission of Inquiry on Enforced Disappearances, website >
I noted that the Shia population is estimated to be up to 40 million[5] and so when we look at the numbers of disappearances of a few thousand over a number of years there doesn’t appear to be a real chance of the applicants being in the wrong place at the wrong time. He said that it will happen. He is not sure that all of the reports of incidents are being recorded and so more happens than what is reported.
[5] Ibid at [3.55]
While it could be that this period of relative safety for Shia is an aberration, I note that the applicant stated that when he was young the situation was better. The data supports this view as do the renditions by the applicants of their and their families’ experiences noting that there was claimed to be only one incident in the past nearly eight years. As such, the aberration appears to be the heightened violence from 2009-2015.
The applicant provided additional country information through post hearing submissions which focused on killings of Shia and the application of blasphemy laws. This information aligned with what had already been available and discussed at the hearing.
I note that the country information provided during earlier submissions at the Departmental stage are considerably dated and relate to what the data described above indicates was a different situation for Shia in Pakistan at that time. As such I have placed less weight on those submissions.
I noted that police provide security at Shia events during special events.[6] The applicant said that for private events they don’t have the money to pay for security.
[6] DFAT Country Information Report – PAKISTAN - January 2022 at [3.60]
Considerations
The applicant has identified his Shia faith as being the primary reason for fearing harm. I have accepted that in the past the applicants and their families have been victims to sectarian violence, but I note that country information shows a clear and consistent trend towards a reduction in sectarian violence. While the applicants argued that this lull was an aberration, the evidence suggests that the violence of 2009-2015 was the aberration. While sectarian violence continues albeit to a far lesser degree and the applicants, as with any other Pakistan residents, are not immune from it, the question of whether they face a real chance of serious harm or a real risk of significant harm arising from the sectarian violence is relevant. Noting the data indicating low levels of sectarian violence over a number of years and that the spike that was contributing to the violence experienced by the applicants and their families was an aberration, I find that the applicants do not face a real chance of serious harm or a real risk of significant harm arising from general sectarian violence in other words being caught up in a random attack on Shia even at while attending Shia specific events.
To avoid confusion, the applicant’s representative submitted a quote from DFAT which states that ‘Shi’a in Pakistan face a moderate risk of sectarian violence’. But I note that the definition of risk that DFAT uses, as detailed in every report, is different to that used in considering the real chance and real risk tests. DFAT’s definition, ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour’[7] aligns more with the question of whether any real chance of serious harm is systematic and discriminatory as opposed to whether it meets the real chance test.
[7] DFAT p 6
The applicant described living close to an area where there are a lot of Afghans. I noted that the government had expelled hundreds of thousands of Afghans and that the situation in that area would be very different to the situation he would have remembered. While it is true that some of the Afghans living there would have acquired citizenship or sufficiently robust fake identity documents to avoid the government’s expulsion efforts, that there are so many expulsions indicates that many others have not. Noting that the data on sectarian violence is specifically for the purpose of tracking attacks of the type the applicant described he fears from the Afghans, i.e. being attacks on Shia going to a Shia graveyard, and that the data nevertheless shows limited violence against Shia, I find that the proximity of the Afghan community to where the applicants would return to does not lead to the applicant facing a real chance of serious harm or a real risk of significant harm from the remaining Afghan community.
The applicants also presented evidence of extrajudicial violence by the authorities and how blasphemy laws are being misused. While I accept that there are instances of both, there is no reason to find that the applicants’ profile is such that they would have reason to fear either—none of the applicants’ past encounters were with the police and neither of the adult applicants are anti-Sunni or liable to be quoted and accused of blasphemy. While it is possible that Shia are randomly accused of blasphemy or rounded-up as victims of extrajudicial actions, this would be on a random basis and noting the population of Shia and the small number of extrajudicial and blasphemy actions, I find that the applicants do not face a real chance of serious harm or a real risk of significant harm arising from extrajudicial violence or the blasphemy laws.
The first named applicant has had an association with and wants to continue to support the Qasr-e-Abu Taleb mosque. I accept that he and others have faced harm as a result of their work with this mosque. I also find that were he to return to Pakistan and resume his association with this mosque he would into the reasonably foreseeable future face a real chance of serious harm and a real risk of significant harm from local Sunni groups who oppose the building of this mosque in that specific area.
It is relevant to note a person does not have a well-founded fear of persecution if they can make a reasonable modification to their behaviour. But there are certain limitations to what is considered reasonable as detailed in s 5J(3)(c)(i):
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:
(c) … 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;
By considering whether the applicant were to cease supporting and attending the Qasr mosque and instead supporting and practicing his faith in a mosque closer to his home in an area that has an established Shia community, it is not a question of whether he would be required to alter his religious belief, renounce a conversion or conceal his true religious beliefs, but only whether stopping his engagement specifically with the Qasr-e-Abu Taleb mosque would lead to him having to cease to be involved in the practice of his faith.
It may be in some instances that preventing access to a specific religious site could limit a person’s ability to practice their faith, for example, it may be that limiting a person’s access to the Kaaba in Mecca would infringe on a Muslim’s ability to fulfill one of the five pillars of Islam which to some believers are fundamental to their ability to practice their faith. As such it is necessary to understand further what the applicant’s motivations are for his continuing interest in supporting the Qasr-e-Abu Taleb mosque.
The reasons the applicant gave for engaging with Qasr-e-Abu Taleb mosque were that he wants to continue the work his father did, that there aren’t any mosques in the immediate vicinity and so he wanted to provide access to the community, and that there are few people who actively support the mosque, so he wants to support it. He acknowledged that there are several Shia mosques closer to where his family home is and that he attends one only a short walk from his house for prayers.
Is it reasonable for this Tribunal to expect the applicant to stop supporting and practising his faith in a mosque in an area that he has described as being a [number]-minute drive away from his home where there is a strong presence of a Sunni militant group who would cause him harm?
In this instance, the Qasr-e-Abu Taleb mosque was a project initiated by a group that included the applicant’s father to provide a more accessible mosque to a community that is located close to a stronghold of militant Sunnis. While it would be preferable that in Pakistan all people were free to establish mosques of any sect in any location without the fear of harm, that aspiration is not a relevant consideration. The question that I need to consider is whether the applicant can continue to practice his faith by making a modification such as not going to a particular mosque and instead attending another that he already attends and whether such a behaviour modification is reasonable. I find that he can continue to practice his faith following such a modification and as such that it is a reasonable modification.
For this reason, I find that the applicant does not face a well-founded fear of persecution arising from the harm he fears from Sunni militants who object to the Qasr-e-Abu Taleb mosque because were he to stop supporting that mosque he would no longer be a target of the Sunni militants. This reasoning and finding extends to his support of [Organisation 1] which is tied to the Qasr-e-Abu Taleb mosque.

Similarly, I find that the applicant does not face a real risk of significant harm from the Sunni militants as a necessary and foreseeable consequence of removal from Australia as any choice that he makes to support the Qasr-e-Abu Taleb mosque once he has returned is not a necessary and foreseeable consequence of removal (see EJB18 v Minister for Immigration & Anor [2020] FCCA 3170). In other words, he can choose not to attend the Qasr mosque and by choosing not to attend he would not face a real risk of significant harm.
The applicant also described his association with the [Organisation 2]. The applicant did not claim that at any stage of his involvement with this group he had ever encountered any harm. I also note that the nature of the work involves supporting Shia community events and as the rate of sectarian violence has decreased so would the risks associated with being overtly involved and present in high profile Shia events. For the reason that the applicant has not encountered past harm when the sectarian situation was volatile and that the situation for Shia now and into the reasonably foreseeable future is safe, I find that his involvement with the [Organisation 2] will not lead him to face a real chance of serious harm or a real risk of significant harm.
The applicant’s father’s experiences of having his small business closed under pressure from Sunni militants may continue to occur to other Shia small business owners with businesses in the same area where his father had his business, but it would be speculative to presume the applicant would establish his own small business in a location that is of interest to Sunni militants and then be threatened. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the possibility of being a small business owner who is pressured to close the business because he is Shia.
The wife believes that her father was fired from his job because he was Shia. Accept this, there is a possibility that the same situation may befall the applicants, but I find that it is a remote possibility. No information was provided to this tribunal to suggest that the exclusion of Shia from general employment was widespread enough to conclude that they face a real chance to be without work. I note that there are tens of millions of Shia and were there to be a situation in which the exclusion from employment for reasons of being Shia is so widespread that it would amount to a real chance it would be widely known and reported on by human rights organisations, but no such information was available to this Tribunal. As such I find that the applicants do not face a real chance of serious harm or a real risk of significant harm arising from the loss of employment and in turn being unable to sustain themselves for reasons of being Shia.
The applicants have described how their families have taken measures to change their religious behaviour including for example having a smaller majlis in their homes. In considering such evidence I find that the changes are reasonable modifications. For example, there is no evidence before this Tribunal that indicates an obligation in Shia Islam to have a majlis of a certain size, this being intuitive as not every Shia can afford to hire tents and host so many individuals as the family of the wife’s father used to. Specifically, having a smaller majlis does not require altering their religious beliefs, renouncing a religious conversion, concealing their true religious beliefs, or ceasing to be involved in the practice of their faith (s 5J(3)(c)(i)):.
Specifically, I find that if the applicants are sometime into the reasonably foreseeable faced with a real risk of serious harm arising from hosting a large majlis it would be a reasonable modification to reduce the size of the majlis such that the risk would not be a real chance of serious harm.
Similarly, I find that any choice to have a large majlis and the risks that arise from that is not a necessary and foreseeable consequence of removal and as such is a choice that they can choose not to take if it would avoid them facing a real risk of significant harm (see EJB18 v Minister for Immigration & Anor [2020] FCCA 3170). For this reason, I find that they do not face a real risk of significant harm arising from hosting a large majlis.

100. I note that the applicant’s representative in post-hearing submissions explained how persecution extends beyond the risk of being killed. I accept this but then in the links to country information provided by the representative all of the information revolved around physical violence including in locations far from Karachi. Without new perspectives being presented to the Tribunal and having considered all of the claims made by the applicants including considering their and their families’ past experiences I have not engaged further with the representative’s axiomatic statement that persecution can extend beyond physical harm.
101. The second named applicant did not raise any fears of harm of her own other than those already raised by her husband and buttressed by her own evidence.
102. The parents expressed fears of harm for their children that amount to fears of discrimination for reasons of being Shia. As was discussed at the hearing, the applicants live in a neighbourhood that was described as a Shia society where Shia come to practice their faith. We identified numerous schools in the area. No third-party evidence was provided that in that area where the children would be attending school, they would be a minority or for some reason would be treated harshly such that they would face serious or significant harm. That it is known as a Shia area would suggest that the schools would have Shia children. Nevertheless, I accept that some ‘teasing’ as the applicants described the situation or ‘being looked at differently’ for being Shia will occur, but such actions do not amount to serious or significant harm. For these reasons, I find that were the children to return to Pakistan and attend schooling they would not face a real chance of serious harm or a real risk of significant harm from discrimination.
103. The parents identified the children’s poor Urdu skills. While I accept that the children would need to undertake additional effort to upskill, this is no different to the effort that the millions of other Pakistanis who have in the past returned from overseas whether as foreign workers, businesspeople, or diplomats have had to facilitate for their children. There is no evidence before this Tribunal that would suggest that such a return leads to the children being harmed. As such I find that the children do not face a real chance of serious harm or a real risk of significant harm arising from not having the same level of Urdu speaking skill as others of their cohort.
104. With regards to generalised violence arising from criminal activity, the situation in Karachi and Pakistan has changed since the applicants’ time in country and noting the size of the population and the random nature of any criminal encounters, I find that the applicants will not face a real chance of serious harm or a real risk of significant harm from generalised criminal violence.
Cumulative Considerations
105. In considering the totality of the applicants’ claims I note that they all revolve around their Shia beliefs and how the community and the authorities would treat them, I now turn my mind to considering how their claims may intersect. The primary intersection is a situation in which the risk to the applicants rises when the separate feared persecutors, the Sunni militants and the government, coalesce, for example were Sunni militants to accuse the applicants of blasphemy and then the state brings charges against them. Alternatively, some residual risk from other family members’ activities that would tar the applicants and increase the level of risk they would already face. But in considering all of these situations I note that the evidence suggests a safe environment for Shia with minimal sectarian violence. Even if there persisted to be some degree of animosity towards other family members that there is a safe environment for Shia is indicative of the state having established a certain level of control of security which would deter and prevent harm to the applicants.

For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION

107. The Tribunal affirms the decision not to grant the applicants protection visas.
Denis Dragovic
Deputy President

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

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.
…