1910890 (Refugee)

[2023] AATA 4028

1910890 (Refugee) [2023] AATA 4028 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stephen John (MARN: 1571637)

CASE NUMBER:  1910890

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Rodger Shanahan

DATE:13 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2023 at 7:32am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – family friend’s factory burned after allegations of blasphemy – applicant drove friend and his family to safety – seen visiting factory supervisor at police station – extortion attempt and threats by individuals and extremist group – credibility – implausible and inconsistent claims full of unlikely coincidences – no proof of friend’s existence – no threats or harm to applicant’s father or evidence of group’s continued interest – authenticity of media reports and supporting documentation – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 17 July 2018.

3. The applicant appeared before the Tribunal on 22 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    CLAIMS AND EVIDENCE

    Protection visa application

11. The following statement was provided as part of the application’s protection visa application:

12. I was born in [a village] in the district of Jhelum, Punjab Pakistan on [Date]. I have [siblings]. My [father] and [mother] are living in Pakistan.

13. I grew up in my village and completed my year 10 from [High School] Jhelum Cantt in [Year]. My father started a business in 2004, as [Business name] - naming it after me since I am his eldest son. After completing my year 10 in [Year], my father asked me what I wanted to do? He wanted me to study further but I told him that I am not interested in further studies as I did not have any clear career ambitions at the time.

14. To this, my father then asked me to join the shop and learn how to run the business. So, I reluctantly joined the shop. In the beginning, I would be there only 3 days a week. I did not know much about the business at that stage and I didn't really enjoy being there. At that stage, I just wanted to hang out with my friends and enjoy myself.

15. [In] March 2009, my father had a heart attack. He was admitted into [Hospital] Jhelum Cantt for 3 days. This was a very difficult time for me and my family and we were very worried about him. Luckily, my father recovered well and was home soon - however he was told by his doctor to stay away from work and avoid stressful situations. As a result, he did not come to the shop for 2 months.

16. During this time, I was left to run the business on my own. Even though I had been learning a great deal from my father for the previous 4 years, I still had a long way to go before I could become successful. But I worked hard and Alhamdulillah I managed to make good business decisions.

17. We have our established clientele who would come to us to buy [Products] for their [use] and other occasions no matter whether my father is there or I am. This business is based on personal relationships.

18. After about 2 months, and still against the advice of his doctor, my father came to the shop and reviewed the accounts. He was happy to see that I have successfully managed and ran the business in his absence. He continued to visit once or twice a week for the next 4 to 5 months. During this period, he further established me with our suppliers and key clients.

19. One night in October 2009, my father sat me down with my mother and told me how proud he was of me, for stepping up after his illness and running the family business in the way that I did. He told me that it was always his wish for me to take over the shop and asked me if I was happy to officially become the owner. I was very happy to hear my father's words and his recognition of my hard work. My mother became emotional too and hugged me.

20. On 1 November 2009, I registered the business officially in my name. On that day, we had a party at our house, where my father invited our friends and family to celebrate. I remember feeling very excited that day and felt like a big man. One of the people that I met that day was Major Retired [A] (whom I call Uncle [A]). He was my father's long-time friend and the owner of [a Business].

21. Financially we belong to an upper middle class. We never experienced want of any necessity of life. My father inherited [number] Kanals ([number] Acres) and I own [number] Kanals ([number]+ Acres) of fertile agricultural land in [my birth village]. Most of our main food items such as rice and wheat annual supply comes from there. The rest of the crops are sold and generate handsome seasonal income.

22. With the mix of business and agricultural income, our family is blessed with everything a good life requires to have. I had been running the business well. The income I earned was good. It was providing for household as well as to fulfil my dreams. I have a passion for travel. I travelled to [Country 1] in 2012, and [Countries 2 and 3] in 2017. I have travelled extensively within Pakistan too.

23. I had a very beautiful life. We live in a joint family system. My parents and younger siblings all live together. It provided me with peace, joy and added security for my wife and me. I got married [in] 2016 to [my] second cousin. As a newly married couple we enjoyed the wider support of my family and siblings for living together.

24. I also have inheritance share of agricultural property which I am entitled to. I also own family home worth AUD [amount] that we built in 2015-2016 before my marriage. Our older family home is still under my father’s name and we have the arrangement that we will rebuild that home and give it to my brother. In a nutshell, I had a very happy, bless and beautiful life in Pakistan.

    Seeking protection in Australia so that I do not have to return to Pakistan, Claim of protection

25. I fear that if I returned to Pakistan I will be either put into jail for life and then given death sentence or people will take the law into their own hands to kill me. It all started in November 2015. [Mr A’s] factory was burnt to ground based on false allegations of blasphemy in our city.

26. The factory used different type of waste material (papers) to burn for boiler. It was alleged that there were some papers of the Holy Quran in the waste papers that were being thrown into the fire. The issue was brought into the notice of [Mr C] (Head of Security of the factory and he is also of Ahmadi sect) however the workers continued to throw the papers into the fire. [Mr D], who was a worker in the factory, saw the incident, filmed it on his mobile phone and then reported the incident to [a] Police Station Jhelum and local Mullahs. Soon after a call to attack and burn the factory was raised from all mosques through loud speakers. In the evening of Friday [Day] November 2015, a mob gather there and burnt the factory to the ground. Later the mob turned towards [the] worship place for Ahmadi community and took charge of their place and converted it to a mosque.

27. Uncle [A], who was the owner of the [factory], lived on [Road], [Town], close to [the] Ahmadi place of worship in the suburb of [Suburb] in [Town]. When he heard the announcement on the loud speakers calling on people to burn the factory, he got worried and headed to the factory to find out what was happening. I'm sure at that stage he would have called the factory supervisor and would have known what the whole situation was about.

28. When he got there, he saw a large crowd of people had gathered and they had set the factory on fire. The police were standing right there but were either not doing anything or were not able to do anything at all to stop the people from burning the factory. He didn’t even get out of his car, and just turned around to head home.

29. At that point, uncle [A] called my father to alert him as to what had happened. We were all sitting after dinner, having tea, watching T.V. He asked my father to come to his house as he needed urgent help. My father sent me to go and see what had happened? When I went to his house, he was ready to leave with his family. I asked him, uncle what is the matter? He said that people had burned his factory and were now heading towards their mosque and he feared that he was the next target for the mob as not only was he the owner of the factory, but he was also the president of [Organisation 1].

30. Uncle [A] asked me to help him take his family to safety. He had some relatives who lived in Rawalpindi and he said that him and his family which included women and children, would be safe there. I called my father to tell him about what had happened and consulted with my father about going to Rawalpindi with uncle [A]’s family. My father said to me that he is a good man and we must help him in this time of need. So, I decided to help him to take his family to safety. Uncle [A], his wife, his sister (who lived with him at the time) and his 4 children – we got in 2 cars and fled to Rawalpindi to their relative’s place. During the drive, everyone was visibly upset and sad. Uncle [A]’s sons, who would normally be joking around with me, were quite the whole way.

31. After helping him escape to Rawalpindi, they remained in our contact for some time but then they moved to [Country 1] where Uncle [A]’s brother is living. Since then we do not have any contact with them. The main accused of blasphemy [Mr C] is an Ahmadi. [Mr C] was working in the factory as a supervisor. He belonged to a village in [District]. He was good friend of mine because of our good relationship with Uncle [A]’s family.

32. He was arrested on the complaint of [Mr D], who accused him of burning the pages of holy Quran. When he was in the lock up of local police station, I went to see him because his mother called me and was very worried about her son. I requested the police officer there to allow me to see him and let me talk to him to his mother over the phone. Police officer let me go and make the call from my phone so that [Mr C] can talk to his family.

33. [Mr C] was sent to jail the following day. Since then he is in jail awaiting trial. I came to know [Mr D] after we met a few times at the factory whenever I visited there. He was also friends with one of my childhood friends, [Mr E]. So, we knew each other but [Mr D] And I were not close friends. However, that day when I went to the police station to visit [Mr C], he was also there in the Police station to record his statement and he saw me there visiting [Mr C]. At that time, I did not know that [Mr D] was the complainant.

34. After the incident he came to me few times asking for some money to loan. I gave him first time 20,000 PKR and some other occasions gave him money that he always returns on time. [Mr D] was friend of my friend [Mr E]. [Mr E] had been my friend since 2005. [Mr E] has ancestral land that his family keep selling to meet their day to day expenses. He has never been into any employment since I met him in 2005. In 2015, [Mr E] bought two cars and used them for [a business 1]. But that business was not very profitable as well. Since 2016 he started asking me to make him a partner in our family business. I always refused because he was not able to contribute in any way to the business.

35. Since 2017, he started asking and insisting on his demand to make him partner in the business. I kept refusing him. However, he kept asking. He does not have any life skill or business skills. In April 2018, he sold some parcel of land and had money to invest. On 20 April 2018, he came to me at my shop and said, "make me partner otherwise I will ruin your business as well. I know what part you played to help blasphemer in [Mr A]'s family issue".

36. I was bewildered to hear that. I said, 'what are you talking about?' He said, "you know what I am talking about. You yourself told me what you did for the family and [Mr C] as well". I said, "it was long time ago man, I did what I can do for you as a friend if you are in a problem". But to run a business as partner is totally different thing. You know that it is our family business. I cannot make you partner in my business. You know nothing about the business and I do not want to make a sleeping partner in the business and account for profits to you."

37. He said, "you are my friend. If you are not going to help me then who should I turn to". We are selling our land to persist. Soon it will be all sold then what we will be doing.' I need your help, do it otherwise I will destroy your life'. I said, 'you seem very depressed to me'. Just go home and we will talk about it later. He left but made me extremely nervous. I was worried and perplexed about his intentions to accuse me of blasphemy or as a friend of blasphemers.

38. I let it go and try to ignore his rant. However, he was not willing to go away. He came the next day and started conversation about the business again. I said, I am going somewhere and must close the shop. I almost pushed him out jokingly saying that I must go. I just do not want to engage in conversation with him. We kept going on and he was asking but did not made any disturbing comment about business or blasphemy issue.

39. On 16 June 2018, [Mr E] came to know about my visa. Few of my close friends knew about this that I am going to visit Australia. I had previously visited [Countries 1-3]. One of our friends must have told him. [Mr E] came to the shop and said, 'I have heard you are going to Australia with your mother'. I said "yes, I am going there to visit my sister and her family for a few weeks".

40. He said, 'if you do not listen to me I will make sure that you do not leave and get killed here. He said, you have until tomorrow evening to decide whether you want to make me a business partner otherwise I will destroy your life. I asked him if he had taken drugs or if he was drunk - that how can you speak to a friend of 13 years like that. And how can you force someone to be a business partner. I told him that I have already told you many times that we are friends and will remain friends, however I cannot make you a business partner as it's our family business. I said please go and let me think about it. I was almost ready for my trip. I did not respond him and the next day passed.

41. On 20 June 2018, two men from Tahrek-e-Labiak Ya Rasool Allah (TLYRA} came to my shop and told me that we know you have helped blasphemer to escape. We are told that you had thrown pages in rubbish that had the Quranic Verses on them'. I said, 'I do not know you and do not know what you are talking about. Therefore, please leave. They said, we are going to lodge police application against you. Coming Friday lnshallah (by God willing), we will bring the whole city to destroy you and your shop. We have taken the testimony of [Mr E] in the mosque and he has confessed in the mosque in front of Allah that you have committed both sins.

42. I said, 'I have not done anything wrong. I am Muslim, and I respect and love my religion. You do not have to tell me how to be a faithful Muslim. One of the men said, 'we will kill your arrogance with you'. I said, 'I am not arrogant. By the grace of God, I am Muslim myself.' I told them to leave and I will speak with [Mr E] to clarify the situation. They said that "there is no point in speaking with [Mr E] and you should get ready to confess your sins in front of Allah on Friday''. With that, they left without any more drama. I was terrified by the way he said that, and I actually felt scared at that time.

43. That night, I told my father what had happened. Both my father and I went to see [Mr E] and his father at their house to deescalate the situation. I told [Mr E] that it was unnecessary for him to get TLYRA involved. It was a matter between us 2 friends and now this has gotten out of hand as people came to my shop and threatened to kill me. [Mr E]'s father was surprised to hear that and was not happy at all with his son's actions. He ordered [Mr E] to tell these people that what he had said to them was not true and he only did it to scare me into accepting him as business partner. I told [Mr E] that I cannot make him a partner in this business - but I will come up with a solution to help him once I get back from my trip to Australia. I told him that I was considering setting up a [business 2] for my younger brother. And that if my brother agrees to it, he can be a partner in that business.

1. [Mr E] said that he was not really thinking about his actions and was very apologetic to me and my father. He gave us assurance that he will talk to TLYRA and will tell them the truth - that I did not commit any sins. We left satisfied from his place. The following day, I handed the keys over to my father and came over to Australia - thinking everything was under control. I was further assured of this, that things were under control, when no-one came to my shop on Friday the 22"' of June, as that had been the deadline given by the two men from TLYRA.

2. Then on the [date] of July at approximately 2 PM, while my father was at the shop, 5 armed men from TLYRA stormed into the shop armed with pistols. They started asking about me and making death threats while pointing gun at my father. As mentioned earlier, my father is a heart patient. He was terrified by this and was badly shaken up. He told them that I was not there. The men demanded to know when I will be back. To which my father replied that he does not know. They said that "we will be back. This is not over. The day we find him, it will be the last day of his life."

3. After making death threats, they fled from the shop. As they left the shop, they resorted to shooting in the air to cause terror and panic. The whole market gathered at the shop and the police were called. My father was in a very bad state, he was shaking and sweating badly. This was very unfair on him for him to have to endure this. The police arrived about 20 mins later and after doing their preliminary investigations, they invited my father to the police station to lodge a FIR (First Information Report- copy attached).

4. Since this incident, my whole life is falling apart. My father is a heart patient, who is now having to work 6 days a week at the age of [Age]. My brother is now helping my father to run the business. My mother cannot sleep at night as she worries about me and what the future holds for me. My wife has gone back to live at her parent's place as she doesn't feel safe there anymore. I had plans to visit my sister and see Australia for a few weeks and then go back to Pakistan. Now my sister is also very worried about me and the uncertainty around my future.

5. Should you need any further information or clarification, please do not hesitate to contact me.

   Relocation in the context of moving to other places within Pakistan

6. In Pakistan the relocation of a person is close to impossible once that person has been accused of blasphemy. The following country information shed light on the plight of people who have been wrongly accused of blasphemy or some fundamental sections of society considered them to have committed blasphemy either by their action or even speaking against the blasphemy law. The mentality is that if you kill a blasphemer the killer will get a reward to be in heaven.

7. There have been numerous instances of this mentality at its brazen display. The bodyguard of then Governor of Punjab Salman Taseer murdered him for his stance against blasphemy Jaw. The killer (Mumtaz Qadari) became instant hero in the country. The love for killer was so high that lawyers in the district court of Rawalpindi threw petals on him when he was attending the court for murder trial. 1 One of the lawyers who offered free representation for Mumtaz Qadari, is Judge of the High Court of Islamabad now. Justice Shaukat Sadaqui has openly been supporter of Muztaz Qadari.

8. In another incident, a young boy who was attending the sermon in a Mosque misheard the Mullah (preacher) saying, "who do not love the prophet? The boy raised his hand and when realised his mistake he went home and chop off his hand himself because he believed he has insulted the prophet Muhammad by raising hand that he does not Jove the prophet. He has become a sensation since this horrible incident as a true lover of prophet Muhammad.

9. In another incident, a vigilante faithful Muhammad Saeed of Talagang in Chakwal District lodged First Information Report (FIR) on 9 June 2011 against a Christian man resident of Lahore who posted some comments on a TV Channel's website. Chakwal is some 250-kilo meters away from Lahore near Rawalpindi. The accused was arrested after 3 and half year later. Now the fate of the Christian man who holds master's degree in computer sciences, is unclear. He will rot in jail for years before he may get a chance of trial in the court. Until now, he is still in jail without trial.

10. On 5 September 2015, police arrested another Christian labourer in the district of Kasur under blasphemy law. The accused Pervaiz Masih was working on a construction site where he was accused to have passed derogatory remarks about prophet Muhammad in an argument with another Muslim labourer. Kasur is some 40-kilo meters of Lahore.

11. On 19 October 2015, police arrested Naveed John a Christian healer from Sargodha, a town some 175 kilometres southwest of Islamabad. Naveed was accused of using sword during his healing sessions that has inscription on it in Arabic. The local residents complained that it hurt their religious feelings. He was arrested and facing up to 10 years in jail.

12. A Muslim lecturer, poet and Full Bright Scholar, Junaid 1--Iafeez of Bahu din Zakaria University in Multan was accused of posting derogatory remarks on a Facebook page by a student linked with Jamaat-e-Islami. There was no proof that Junaid did that. However, since 2013 Junaid Hafeez is in Jail in Sahiwal. The lawyer, Rashid Rehman a member of Pakistan Human Rights Commission, who was representing Junaid Hafeez was murdered in his chamber after receiving threats from opposing lawyers in front of a judge in an open court during trial that he will not be able to appear in the next hearing. Now Junaid Hafeez is without representation sitting in jail for crime he did not commit.

13. In the given atmosphere, the applicant cannot live without fear in Pakistan. It is evident from 9/11 attacks and the horrific attacks in Paris and atrocities committed by Isis in Syria and Iraq, that those Muslim extremists kill non-believers and believers alike to earn their ticket for heaven (jannat). These terrorists did not spare the little children in a horrible attack on Peshawar Army Public School and last years attack on two churches in Lahore killing score of Christians including women and children.

14. In 2011, a father and son in Aziz Colony (an area with large concentration of Christian families) Gujranwala were accused of Blasphemy and when they were released from protective custody there were charged mob to attack the Theological Seminary, Church and Christian homes in Aziz Colony. The residents had to flee the area and many have left permanently and sought asylum in Sri Lanka, Malaysia and Thailand.

15. Another Christian settlement in Gujranwala came under attack on 3 April 2013. Francisabad is a Christian concentrated settlement which is 4th largest in the province of Punjab. An altercation over playing music between Muslim and Christian youths turned into a communal attack. Under false allegation of disrespect to the religion of Islam, a mob gathered around Francisabad and tried to burn it down. However, the local residents who are in huge numbers stood to defend and bought time that allowed police to intervened and averted an imminent tragedy.

16. In recent general elections of 26 July 2018, the Tehreek-e-Labbaik Ya Rasool Allah (TLYRA) a newly formed party that openly support and talk to kill all infidels for the supremacy of Islam. Mumtaz Qadari the killer of Salman Taseer is the poster boy for this organisation. The leader of the party Khadim Hussain Rizvi openly called Mumtaz a martyr and his hero. Khadim Hussain recently asked for nuclear strike on Holland in the wake of Prophet Mohmmad caricature competition announced by Far-Right Leader in Holland.

17. The party staged a protest in October- November 2017 in Faizabad interchange that connects Rawalpindi and Islamabad with each other. They paralyzed the both cities for couple of weeks. The reason to protest was that ruling Pakistan Muslim League Nawaz sought to amend the oath of legislatures and prime minister of Pakistan that omitted the word "I believe in the finality of Prophet Muhammad". According to this party, any me who do not believe that Prophet Muhammad is a last messenger of God is punishable with death and is not a Muslim.

18. The protesters demanded that the law minister should resign and all those who were responsible for omitting these words from the draft bill being brought before the parliament should be punished.

19. Government resisted and sought to use force on 25 November 2017 to disperse the protesters on the orders of the Islamabad High Court who took actions against the protester for using derogatory language against the judges of supreme court of Pakistan.

20. The effort turned into crisis and police could not disperse the protesters. The army was requested to intervene, but the army refused and asked the government to negotiate. Later, the law minister had to resign, and parliamentary commission was set up to investigate. Pakistan army distributed cheque of l000 rupee to each participant of the protest to leave and go back to their homes.

21. During the effort to disperse the protesters few police officers were injured and killed as well. However, no case was registered against protesters or its leadership. When government started its operation to disperse the protesters, TLYRA leadership give call to arm and paralysed the whole country. From Peshawar to Karachi the whole country was brought to its knees. Neither army nor civilian government was able to take control over protesters. At the end government accepted the demand of protesters.

22. TLYRA and all other terrorist and religious hardliner organisations were allowed to contest in the general elections of July 2018. While some political parties came under harsh scrutiny by the election commission of Pakistan and judiciary, the fundamentalist were given free hand to campaign in the whole country.

23. In Gujranwala, TLYRA candidates were third runner up in most of the contested seats while securing more than 10,000 votes in National Assembly constituency number 80. This constituency comprises city and adjoining villages. Every voter who voted for TLYRA and all other fundamentalist, is a hardliner who believed in the teachings of their leadership. They are the potential people who could and would kill the applicant should they get any chance of doing it. It is Iike trying to hide from a mob that is willing, capable and ready to kill a blasphemer at every time.

24. TLYRA has secured two seats in Karachi for the provincial assembly of Sindh. These terrorists have managed to bag 2.2 million votes in these elections. It has given these hardliners not only legitimacy but power to influence on legislation and policies.

25. In March 2015, two suicide bomb blasts on Churches in Youhanabad Lahore killed scores of Christians including women and Children. An angry mob caught two terrorists and killed them who were Muslims.

26. In March 2015, two suicide bomb blasts on Churches in Youhanabad Lahore killed scores of Christians including women and Children. An angry mob caught two terrorists and killed them who were Muslims. The protest by Christians turned violent when a passer by run over few participant of protest rally and killed them. The government of Punjab responded in retaliation and since then have terrorised all the residents of Youhanabad, Bahar Colony of Lahore. Many Christians are still in jail and many had been missing since the attack. The government ignored the Christian causalities and revenged the two Muslim terrorists who were caught red handed.

27. In March 2013, a Christian settlement of Joseph Colony was attacked and burned to ground. The mob lotted all the properties and later set all the homes of Christians on fire. It was all done in the pretext of blasphemy accusation. An argument between two drunk supposedly friends ended with Muslim accusing Christian of blasphemy. Police asked all Christian families to leave the area but stood idol when Muslim mob attacked Christian's homes.

28. A whole Christian area "Christian Colony" was burnt down near Faisalabad in Gojra in July 2009 and burnt alive women and children in their homes. No accused was caught and tried for the crime. The judicial commission nominated a police office for negligence but current PMLN government promoted him and appointed him in Lahore where another similar incident took place in torching of Joseph Colony. On the contrary, government has detained many Christians in Youhanabad Lahore who were victims of two bomb blasts.

29. ln July 2010, two Christian brothers who were accused of blasphemy were shot dead out side Faisalabad District Court in the custody of police force. Pastor Rashid Emmanuel aged 32 and his brother 24 was accused of writing blasphemous pamphlets against prophet Muhammad.

30. In 2005, Christians in Faisalabad had to flee their homes because of fear of attacks by Muslims in the wake of an accusation that a Christian has desecrated the pages of Quran. Christian  community in Faisalabad  has long been harassed and targeted under blasphemy laws. Late Bishop John Joseph of Faisalabad shot himself dead in protest of blasphemy law. Late Shahbaz Bhatti, minister for minority affairs belong to Faisalabad who was assassinated for his role to review the blasphemy law.

31. Similarly, Karachi has witnessed continues and systematic attacks on Christian churches and institutions. A Muslim convert Anwer Masih in Lahore was targeted, and his employer was pressurised to terminate him because he was considered a blasphemer. He had to go into hiding despite the fact he was acquitted by the high court in 2004 of all charges.

32. The blasphemy law is not targeting only minorities. It is targeting Muslims as well. People are using this law to settle personal score with each other. A man accused of blasphemy returned to the city of Sialkot after 13 years living in Belgium. Three sisters of young age went to his home wearing veil and asked to see him. As soon as he appeared before them they opened fire on him and killed him. They were caught by the police. They admitted that when the incident took place we were very young and could not revenge the honour of our religion but now we had the means and chance to kill him. Sialkot is situated in north east of Gujranwala. The city is famous for its sports products.

33. A cursory look at the situation in Pakistan particularly in the context of blasphemy law would reveal that in every incident that escalated to major catastrophe like Joseph Colony, Shanti Nagar and Gojra started as a one to one argument. In the incident of Joseph Colony there were two old friends fighting with each other but later once the blasphemy issue was raised it no longer remained personal.

34. In the case of applicant, the nature is no different to the all reported cases. The notion of relocation of accused of blasphemy in Pakistan is a fantasy that holds no merit. Even government and its security agencies are helpless when it comes to blasphemy law. Supreme court of Pakistan has taken up many sou moto actions in recent past but has not the courage to deal with Asia Bibi's case who had been languishing in prison for last 9 years. Till date, the case has not been assigned with a hearing date. A blasphemy case was registered against a teacher who dare to ask a student why he was coming to school late. The student responded with allegation of blasphemy. The teacher was arrested and still in jail.

35. In another incident a school principle was arrested for allowing to flee a teacher who was alleged to distribute derogatory information about Prophet Muhmmad. The school administration blamed conspiracy against the school from some local opponent. In an horrific and barbaric act people burnt alive a deranged person who were accused of throwing pages of Quran on the street. Police took him in custody but charged mob gathered outside the police station and overwhelmed the police who resort to tear gas the protesters but could not save the person from the mob. Mob took the person out of police station, dose him with petrol and set him on fire alive after beating him mercilessly. The mob also ransacked the police station and burnt police vehicles.

36. A young Muslim student was lynched to death in the city of Mardan in Pakistan. He was accused of blasphemy by some students and university administration. The plot against him was orchestrator by the university administration for being critical. But he was brutally beaten and murdered. A judicial commission was set up to investigate the incident. Commission could not find any evidence of blasphemy committed by Misha! Khan. All the accused in Misha! Khan case has been released on bail. Among accused were the elected local body member of Pakistan Tahreek-e-Jnsaaf PT!. PT! is currently in power in Pakistan. It is worth noting that people who killed Masha! Khan have been released but the people in Youhanaabad are still languishing in jail.

37. ln the given context and factual realities outlined above, it is not possible for the applicant to live in Pakistan.

    AAT Hearing

38. The applicant was asked if he knew everything that was in his protection visa application and that it was true and correct and he said that he did and it was. It was also put to him that he had been asked to provide information to the Tribunal prior to the hearing but that only some of that requested was received. In particular he was asked for a copy of the original newspaper article and the link to the website.

39. He said the adviser should have done it and the adviser was asked about it. He appeared uncertain and the Tribunal advised that country information indicated that fraudulent documents were readily obtained in Pakistan and the Tribunal wanted to satisfy itself that the scanned copy of a newspaper article was genuine so weight could be given to it. The scan appeared as though it could have come from any home computer-produced document and the Tribunal wished to satisfy itself the article was genuine.

40. The applicant said it had been sent however they were referring to the scanned document already sent. The issue with fraudulent documents was explained again and he said that he needed some more time. It was put to him that it had been requested on 4 August. He was also asked about contact he had with [Organisation 2] in Australia and was asked if he had any contact and he said that he hadn’t. He said his lawyer told him that [Organisation 2] evidence was needed but didn’t tell him he needed evidence from Australia.

41. He was advised that evidence from the Australian [Organisation 2] about contact he had them was requested on 16 August. He said it was not explained to him by his lawyer. Asked if he had joined an Australian branch he said that he hadn’t because he was too stressed so he hadn’t contacted them. Asked if he was undertaking medical treatment for stress, he said that he had been issued Medicare but didn’t have it since his visa was cancelled. He couldn’t visit a doctor. It was put to him that he could pay privately and he said that the fees were high.

42. Asked if he was working, he said that he was [an Occupation]. It was put to him that it was strange that he was too stressed to speak to [Organisation 2] but not too stressed to work. He said that he had to survive. He was also asked about evidence relating to ‘Uncle [A]’ who he claimed had fled top [Country 1] after the factory fire. This had been requested but none had been forthcoming. He said that initially after he left he contacted his father but not since then. He was asked about mutual friends who could contact him and he said that he wasn’t in contact with anyone and only spoke briefly to his wife.

43. He was asked details about his wife and their marriage and this appeared consistent with the information he had provided. He said he spoke to her daily or several times a week. When he came to Australia he arrived with his mother but she returned to Pakistan within the validity time of her visa. He had already been asked to provide the original copy of the First Incident Report (FIR) and he said it had been given to the authorities when he came to Australia.

1. He claimed that if he returned to Pakistan then the Islamist group Tehreek Labaik (TL) would be jailed and burnt alive because he had helped non-Muslims in Pakistan. Asked if he had any other claims he said it was the only claim.

2. It was put to him that he had provided media reports of a [factory] in his city and the Tribunal accepted that the fire occurred so he just needed to explain its relevance to his claim. He said that it was because they helped someone after the fire that he was in need of protection. They were good family friends of the owner – his father had a close connection with the owner. Asked how his Sunni father had a close relationship with the Ahmadi factory owner, he said that the owner was a regular customer of the father’s shop and the relationship developed from there.

3. Asked how he was connected to the factory fire, he claimed that the night the incident took place, the owner called his father and they went and helped him. They took him from Jhelum to another city where he had relatives. Asked why he didn’t have other people to take him, he said he called his father and explained the situation. Asked why, in a city of 200,000 people he asked the applicant’s father rather than someone else or why didn’t he drive himself.   

4. He said that when the incident occurred, no one wanted to come forward to help because the police were there as well. It was put to him that presumably ‘Uncle [A]’ had several friends in the city. Out of all the 200,000 people in Jhelum it was strange that ‘Uncle [A]’ would call his Sunni shop owning father. This meant that their relationship must have been very close if he reached out when he was in danger. The subsequent complete lack of contact with Uncle [A] given what they had done for him was very strange.

5. He said that in life people want to move forward and they just got on with life. It was put to him that perhaps if they were just business contacts this may be true, but they were responsible for saving his life. They also knew where his relatives lived in Rawalpindi given they had driven him there so they could have contacted him through them. The lack of details regarding ‘Uncle [A]’ was strange to the Tribunal.

6. He claimed that things just happened and they didn’t think they would need his help in the future. They dropped him at his relatives in Rawalpindi and then returned to Jhelum. They lost contact with him. The factory supervisor was in jail and his mother rang the applicant. Asked how she knew the applicant, he said that his mother rang Uncle [A] and then [Mr A] told her to contact the applicant’s family and then she rang the applicant. Asked why she didn’t contact a lawyer as he would have been the obvious first choice. He claimed that when it comes to religion lawyers can’t do anything. It was put to him that they could at least try. The applicant had no legal background or police experience so it was strange that she had chosen to call him.

7. He claimed that the police didn’t do anything when the fire happened. He was asked again why his mother didn’t call a lawyer rather than him. The Tribunal didn’t understand how the supervisor’s family believed that the applicant would solve their problem. He claimed she wanted him to help her to be able to contact her son as she hadn’t been able to. It was put to him that it was strange that the police would allow him to have contact with he detained supervisor so even if she just wanted contact with her son then a lawyer could do this as he was allowed to speak to a detained person. He said that it was a Friday night and the issue was before the local court. It was put to him that a court was a court so regardless of its level a lawyer was the preferred person.

8. He said the way the law operated in Pakistan was different to here an he didn’t know how it happened but it did. It was put to him that lawyers were still normally the ones to interact with detainees in Pakistan – it wasn’t that different. He said that when it came to issues of religion, no lawyer would help you. He was asked if he was saying that an Ahmadi was unable to get legal; representation in Pakistan. He said they do get lawyers but they were always non-Muslims and they didn’t have the same rights as others in Pakistan. Asked if he had brothers in Pakistan he said he had a younger brother.

9. After the supervisor’s mother called him, he went to the station and was able to get the supervisor to call his mother. He didn’t know at the time, but at the same time the applicant was speaking to the supervisor a person named [Mr D] who worked at the factory was giving his statement and saw the applicant. [Mr D] lived locally and used to come to their shop and ask them for money. Another friend of the applicant was called [Mr E], and [Mr D] was his friend. [Mr D] told [Mr E] what he had seen in the police station. [Mr D] had seen the applicant in the factory when they went there and he would speak to [Mr D] as they lived in the same area. [Mr E] had been the applicant’s friend since childhood – he knew [Mr D] through [Mr E].

10. [Mr D] told [Mr E] that the applicant was involved in the incident that occurred. It was put to the applicant that he wasn’t involved and he said that [Mr E] had previously wanted to be a partner in their business but the applicant had refused and [Mr E] said if he didn’t let him become a partner he would destroy the applicant’s life. [Mr D] told [Mr E] he had seen the applicant talking to the supervisor at the police station. Because the applicant’s family were the only ones with a family relationship with Uncle [A] [Mr D] and [Mr E] formed the view that they were the only ones who could have helped [Mr A] escape. It was put to him that [Mr D] could only say that he had seen the applicant talking to the supervisor. It was put to him that if he had been approached with this information he could just have told the truth and said he was helping him call his mother. Presumably this wouldn’t have been a problem.

11. He claimed that the problem was that [Mr E] wanted to be the applicant’s business partner and he was using this incident to blackmail him into accepting him as his business partner. It was put to him that it didn’t appear why him talking to the supervisor would be blackmail material. The claim didn’t appear to make sense – he could simply have told [Mr E] what he was doing. He said that this is what he told [Mr E] and [Mr E] went away but a few days later [Mr E] told an Islamist organisation that the applicant had helped the Ahmadis.

12. Asked how [Mr E] knew these people he said they had a very strong network and knew what occurred. Asked what [Mr E] told them given it seemed a strange way for him to become the applicant’s business partner and what he thought [Mr E] was trying to achieve, he claimed that [Mr E] wanted to involve organisation because they could help destroy the applicant. Asked what [Mr E] wanted the Islamist group to do, he claimed that he wanted them to be happy with [Mr E].

13. It was put to him that it was hard to believe that [Mr E], his very good friend from childhood, was trying to become a business partner in their family business and, when he allegedly heard the applicant spoke to the supervisor, he thought he could use this against the applicant to somehow become a business partner in the family firm where the applicant wouldn’t have the final say. Then he approaches a terrorist group to harm the applicant.

100.   This didn’t appear to make sense and the Tribunal was concerned that the applicant had used a real event (fire) to construct a false narrative where the applicant was involved in it. In a city of 200,000 he happened to be a good friend of the factory owner (even though there was no evidence). Out of all the people the owner could have called, they called his father and out of all the lawyers the supervisor’s mother could have called she called the applicant. And then, at the very moment the applicant spoke to the supervisor, [Mr D] happened to be there and see him. [Mr D] happened to be a good friend with [Mr E] and, even though all he had seen was allegedly the applicant speaking to the supervisor in the police station, [Mr E] decided to take this to a terrorist group and have the applicant killed. This all appeared to be implausible and didn’t appear to be true.

101.   He claimed that this was what happened and he knew if he returned he would be killed. Thousands of people had been burnt alive by these people. Asked if he had any problems leaving Pakistan he said that he didn’t. Two days after he left Pakistan two people came to their shop asking where he was. It was put to him that it was quite coincidental that he had just left. Asked if he left as soon as he got his visa, he said he believed he did. It was put to him he left [in] June after being granted the visa on 21 May – this made the timing of the terrorist visit coincidental. He said that when time was up it was up. It was put to him that this was another coincidence amongst many.

102.   The people who came to the shop said they would sort things out when the applicant returned. They accused the applicant of helping a non-Muslim and disrespecting Islam. It was put to him that his father was also guilty for helping a non-Muslim and he said that only the applicant drove [Mr A] to Rawalpindi. It was put to him that the applicant’s father had been the one who was called and allegedly sent his son. He had said that someone had gone to [Mr A]’s house and checked for [Mr A] but didn’t find him there. He said it was established that the applicant helped non-Muslims when they saw him talking to the supervisor.

103.   His father ended up in hospital with stress – they just threatened him because they were looking for the applicant not his father. It was put to him that [Mr A] and his father were good friends and it would be likely they assumed the applicant wouldn’t have assisted [Mr A] on his own so it was strange his father was untouched. He didn’t provide a response to this. Asked when they last went to the shop, he said five of them went [in] July. They had previously come two days after he left – it was put to him that he said in his statement that he had said they came two days before. He said that they also came earlier as well when he was still there which was why he went to [Mr E]’s house and he said that he would ask them not to hurt the applicant. It was put to him that in his statement he never mentioned them coming two days after he left and had said when asked earlier about the coincidence that timings just happen when they do. He said it may have been his mistake.

104.   He was asked if they ever harmed his father he said they only scared him as they were looking for him. When they returned he reported them to the police. Asked if this group had done anything to his father, a family member or the shop in the past five years he said that they ahdn’t and he largely stayed at home. It was put to him that they knew where he lived given [Mr E] would have known. He said the group had no problems with his father. His wife was largely with his mother-in-law. It was put to him that it was strange that they hadn’t detained a family member in order to get the applicant to return rather than just let him stay away and he claimed that for the past two years the group has slowed down a bit as the leader had died but it was now getting pace again. Nothing happened to his family because he wasn’t there – he was again asked why they hadn’t kidnapped his family. He said that they did this and it was possible but they hadn’t yet.

105.   It was put to him that he claimed in his statement that his father worked six days a week – he said this applied at the time he gave the statement. It was different now. He was asked if his mother returned to Pakistan after the shop had been attacked and he said she did as the problem was with him. Nothing had happened to the shop in the past five years. The police were still looking for people. He was told that country information indicated documents fraud was widespread in Pakistan and a FIR didn’t indicate that an incident had occurred – hence it was unlikely that the document could be given much weight.

106.   Asked if he had previously been refused a visa to another country, he said [Country 4] in 2015 refused him. He said he wasn’t really given a reason – they refused an entire group of [Organisation 2]. He had been to [Country 1] in 2011 and then he applied again and he was refused. He said he was refused twice – in 2013 but wasn’t sure. Asked if he had travelled overseas anywhere else he said he went to [Country 2] in 2017. He didn’t take his wife but visited friends. Asked if there were any photos of him doing [Organisation 2] activities in Pakistan given he had been asked for them but he had not provided any. He said he had them and asked for more time to provide them.

107.   It was put to him that all he claimed to have done was allegedly speak to an Ahmadi so he could call his mother, and was asked why he would be targeted for this after five years (later clarified as eight years). He was also an observant Sunni so the interest in him was strange. Terrorist groups needed to prioritise targets and justify the risk of an attack and what he had claimed he was accused of doing didn’t appear to justify the risk. He said they were a large group and were represented in parliament. He was asked why his alleged crime would still attract attention eight years later.

108.   He claimed these incidents still occurred even ten years later. He was asked why he couldn’t relocate from Jhelum given there were 230 million people in Pakistan and country information indicated that people were free to relocate – the group was unaware he had left Pakistan sop their ability to trace his movements didn’t appear to be good. He said that the group could still locate him anywhere even ten years after he left.

109.   It was put to him that he had been refused visas previously to two Western countries and had travelled to [Countries 2 and 3] and returned to Pakistan (where Pakistanis could travel easily). This raised concerns in the Tribunal’s mind that he was always attempting to come to a Western country and had travelled to [Countries 2 and 3] to establish a travel pattern and get a visa. He said that he was young and people didn’t leave Pakistan to establish themselves elsewhere – it was put to him that he had a sibling in Australia and another one on [Country 1]. He would have brought his wife here if he was trying to stay in Australia. It was put to him that he probably wouldn’t have been issued a visa if he tried to come here with his wife.    

110.   He was asked to confirm that it was members of Tehreek Labaik that came to his shop after he left and he agreed. He was asked to confirm that they weren’t names as such in the FIR or the media report. He claimed they didn’t normally use the name of the group but just that of the leader. He was asked why they began firing in the air when they left the shop given their target wasn’t there. It would just bring the attention of the police on them for no apparent reason. He said they did these things to scare people.    

111.   The applicant’s adviser (after a break) then said there was some confusion about the original newspaper article and he was told he would be given an additional seven days. He would also try to provide evidence regarding ‘Uncle [A]’ but it wasn’t unusual that they lost contact. These things happened and it wasn’t unreasonable to believe they could have lost contact. Regarding the applicant being in the police station the context of there having been a Qur’an burnt meant that the people were attributing to the applicant that he was an enabler and supporter of the person accused of burning a Qur’an. It was put to him that the actual fire wasn’t in question, it was the applicant’s role (or lack of it) regarding the incident. It was put to him that ‘Uncle [A]’ appeared key to this case and if he had fled to [Country 1] then it is likely he would have applied for protection so there may well be a [Country 1] migration decision that supported the applicant’s claim regarding the events he had described.  

Second hearing

112.   The applicant was happy to accept the preamble provided to him at the first hearing and did not require that it be repeated. The applicant was asked of he had any further information about ‘Uncle [A]’ and he said that he didn’t. He was also asked about photos of him with [Organisation 2] in Jhelum and he said he had some on his phone. It was put to him that he had been asked to provide photos previously from social media given concerns about the legitimacy of photos from devices that could have been photo-shopped.

113.   Asked whether the [shop] business was owned by his family or by him, he said that he was the owner. His father originally ran it then he took it over in 2009. Asked oif he had evidence of this as the Tribunal only had documents from 2018 – he said that he had the documents and had submitted them earlier.

114.   The Tribunal said that it had received the newspaper article and it was put to him that there was no mention of the reporter an that country information indicated that fact-checking training and education wasn’t a strong feature of Pakistani media. There was a concern that someone could have simply reported second-hand information without checking it first so it was unlikely the media article could be given much weight.

115.   He said that he had submitted an FIR with it. He was told about country information that indicated FIRs were not a good indication that an event had occurred due to the ease with which they could be faked. The copy he had provided was also handwritten and lacked security features. If someone gave a fake FIR to a journalist it was possible that they would accept it and report on it (given the poor fact-checking). He said it wasn’t p[possible that a FIR could be registered without something happening.

116.   It was put to him that the DFAT country information specified FIR as a particular feature of fraudulent documents available in Pakistan. The article only referred to an FIR and didn’t include any interview with a police spokesperson for example, which was of concern to the Tribunal when apportioning weight to be given to the evidence. He said the document was true and the incident happened.

CONSIDERATION OF CLAIMS AND EVIDENCE

117.   The applicant arrived in Australia on a sponsored family visitor’s visa [in] June 2018, the visa having been granted on 21 May 2018. He applied for a protection visa on 17 July 2018.

118.   The applicant is a [Age] year-old married male Pakistani citizen. I have seen a copy of his passport and accept that he is a genuine Pakistani citizen. He claimed that if he returned to Pakistan he would be jailed and killed by the Islamist group Tehreek Labaik (TL) because he had come to the aid of non-Muslims in Pakistan.

119.   In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant. 

120.   Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.

Factory Fire and Assistance to Ahmadis

121.   I accept that there was a fire in a [factory] in Jhelum in November 2015 that was owned by Ahmadis and that the fire had been started after a rumour spread that pages of a Qur’an had been deliberately burnt in the factory. There is plenty of contemporaneous media reporting surrounding the incident which also goes into some detail about the events, including naming some of the individuals involved. This is all publicly available information.

122.   I do not accept that the applicant was involved in assisting the factory owner and his family or the supervisor accused of burning the Qur’an. This relies entirely on his oral testimony regarding events, which I found to be both implausible and full of unlikely coincidences. To begin with, I do not accept that the applicant’s Sunni father and the Ahmadi owner of the factory (referred to as ‘Uncle [A]’ using the South Asian honorific of ‘uncle’ rather than using it to denote a familial relationship) were close friends because [Mr A] had been a customer of the applicant’s family [shop].

123.   It is unusual that such a close relationship would have developed simply through visiting their shop. It is more unusual that, when [Mr A] faced problems as a result of the factory fire and accusations of Qur’an burning that he would reach out to the applicant’s father for assistance. Jhelum was a city of 200,000 people and it is strange that a Sunni [shop] owner would be the person he turned to in order to help him and his family in a time of crisis. I do not accept that this was because people didn’t wish to come forward as the police were involved – it was not a matter of people coming forward to help, the issue in the Tribunal’s mind was that [Mr A] reached out to the applicant’s father out of all the people he could have in a city of 200,000 people and that the applicant or his family had not been able to establish contact with such a dear friend of his father. 

124.   The Tribunal sought evidence from the applicant from or about ‘Uncle [A]’ that would satisfy the Tribunal that such a person existed. It is reasonable to believe that, given the allegedly close nature of their relationship and the fact that the applicant and his family had effectively saved the life of [Mr A] and his family, that there would have been some ongoing communication between the families. Or at a minimum that they would have [Mr A]’s contact details or be able to access them through mutual friends or [Mr A]’s family members (the applicant claiming at hearing that [Mr A] had family members in Rawalpindi at whose house he had dropped [Mr A] and his family).

125.   The applicant was asked to provide evidence of [Mr A]’s existence prior to the hearing and was also given additional time after the hearing however he maintained that [Mr A] had moved to [Country 1], the families had moved on and lost contact. No information regarding ‘Uncle [A]’ was forthcoming. I do not accept that ‘Uncle [A]’ existed, or that the applicant was asked to drive him and his family to [Mr A]’s relative’s house in Rawalpindi.

126.   Because I do not accept that ‘Uncle [A]’ existed, it follows that [Mr A] never told the factory supervisor’s mother to contact the applicant’s family for assistance and that the applicant was then tasked to go to the police station to try to get permission for the factory supervisor to contact his mother. It lacks credibility that the mother would seek the intercession of the son of a friend of Uncle [A] when a lawyer would have made much more sense, and the right to legal representation is a feature of Pakistani law.[1]  

[1] Effective Legal Representation - Manual for Capital Defence Lawyers in Pakistan (capitaldefencemanualpk.com), accessed 30 August 2023.

127.   I do not accept that lawyers were unable to do anything when it came to religion – he provided no country information in support of this assertion. Nor do I accept that he was preferred by the mother because it was a Friday night and the matter was before the Local Court. He did not expand on why Friday night meant he was the preferred option and the fact that the matter was already before the Local Court makes it even more unlikely that an unqualified [Age] year-old who the supervisor’s mother had never met would have been preferred to a lawyer as the person to contact the supervisor and seek permission for him to speak to his mother.

128.   The Tribunal’s concerns about the truthfulness of his claim is further manifest in the coincidental sighting by [Mr D] of the applicant while the latter was allegedly at the police station. It is a remarkable coincidence that, at the very moment the applicant was at the police station talking to the supervisor (after having allegedly driven ‘Uncle [A]’ and his family to Rawalpindi) a person known to the applicant ([Mr D] lived in the same area as the applicant, worked at the [factory] and spoke to the applicant when he visited, and also asked for money from the applicant’s family at the shop), just happened to be at the police station giving a statement and saw the applicant talking to the Ahmadi supervisor.

129.   The coincidental nature of events alleged by the applicant continued, as not only did [Mr D] witness the interaction between the applicant and the supervisor, [Mr D] was also a friend of the applicant’s childhood friend [Mr E]. [Mr E] in turn had wanted to be a partner in the applicant’s family business and when the applicant refused him [Mr E] threatened to destroy the applicant’s life.

130.   It makes little sense why [Mr E] threatened to destroy the applicant’s (his childhood friend) life simply for not making him a business partner when the business had been started by his father and family members still worked in the shop. There is no indication that [Mr E] had contributed in any way to the running of the shop previously, and was not good with the business with the small business he had previously run. 

131.   The applicant’s claim that [Mr D] told [Mr E] about what he had seen, and that [Mr E] then tried to weaponise this information by blackmailing the applicant into taking [Mr E] on as a business partner, also lacks credibility. It is not clear why [Mr E] would have thought that the applicant being seen talking to the detained Ahmadi supervisor in order to get him to call his mother would be blackmail-worthy information.

132.   Then, when the applicant allegedly explained the simple nature of the exchange between himself and the Ahmadi supervisor, it makes little sense that [Mr E] would then try to curry favour with a radical Islamist group by accusing the applicant of helping Ahmadis. It is a big step to go from childhood friend of the applicant wanting to be in business together to ‘shopping’ the applicant to an Islamist group. The applicant’s claim that the account was true does nothing to overcome the Tribunal’s concern that the applicant has used an actual event that was widely reported in the media (the factory fire and anti-Ahmadi exhortations) to fabricate a protection claim based on events subsequent to the fire that involve him. The Tribunal finds his account of these events involving [Mr E] (demanding to be a business partner, threatening to destroy the applicant’s life and/or involving Islamist groups in targeting the applicant) to be implausible.

Subsequent attack on [Shop] in Jhellum

133.   I do not accept that TL had searched for the applicant or that they had entered the family [shop] looking for the applicant, frightened the applicant’s father and then fired shots into the air as they left.

134.   To begin with I have not accepted the applicant’s claims regarding his interactions with the Ahmadi factory owner or supervisor and as a result I do not accept that TL have any interest in him. The timings of the visits to the [shop] also appear coincidental and the subsequent actions not indicative of a threat to the applicant. During the hearing he claimed that two men came to the [shop] looking for him two days after he left Pakistan and that when they later returned his father reported them to the police.

135.   In his protection visa statement he claimed that two men from TL came to his shop and threatened him on 20 June 2018. This was the day before he left for Australia which again appears to be quite a coincidence given the factory fire occurred in November 2015. I do not accept that this visit was prompted because [Mr E] had business failures and that on 16 June 2018 [Mr E] then found out that the applicant was travelling to Australia.

136.   The applicant was inconsistent in his claims regarding visits from TL, saying variously that they visited his shop both just prior and just after he left for Australia. I do not accept that his failure to mention both visits was his error. Given the centrality of the alleged attention that TL is paying him I do not accept that he would fail to mention all of their visits to his [shop] looking for him and/or threatening him.

137.   I also do not accept that the TL visited the applicant’s family [shop] [in] July 2018 ([number] days after he left Pakistan). I have taken into account evidence the applicant has provided in support of the claim, which includes an original FIR (with translation) and a local newspaper account of the incident (the original story and a translation). I lend them little weight. The FIR is handwritten and country information indicates that DFAT does not consider the existence of a FIR as conclusive evidence the events described in the FIR actually occurred.[2]

[2] DFAT Country Information Report – Pakistan dated 29 January 2022, p 47.

138.   The local newspaper article is attributed to an (unnamed) crime reporter, contains no photo or interview with any police and says the case was registered by the applicant’s father. It provides no sourcing for the story. The media report also states the intruders fired in front of the applicant’s father and then left the premises and began shooting in the air. The FIR makes no mention of the firing in the shop, nor did the applicant.

139.   The Tribunal is not satisfied that the media report reflects an incident that actually occurred. The absence of any reporter’s name or source for the information for example, means that the report could be based entirely on second-hand information provided by the applicant’s father. Country information[3] indicates that there are significant shortfalls in the level of fact-checking training and education amongst Pakistani journalists and this reinforces the concerns the Tribunal has regarding the media article as reliable corroborative material.

[3] Pakistani organization releases new report on fake news - The Norwegian Human Rights Fund (nhrf.no), accessed 30 August 2023

140.   The Tribunal also has concerns that the TL appear to be targeting the applicant for helping ‘Uncle [A]’ and the supervisor because they were Ahmadis yet they appear to have no interest in the applicant’s father or any other family member of the applicant. I do not accept that only he was targeted because he was the one who drove [A] and his family to Rawalpindi and was seen speaking to the factory supervisor. From what the applicant said the relationship between the applicant’s father and Uncle [A] was well-known given he was invited to the father’s birthday and the applicant and his family used to visit the factory.

141.   It therefore lacks credibility that suspicion would only have fallen on the [Age] year-old son for helping ‘Uncle [A]’ and not the father given the latter’s personal relationship with [Mr A]. It is not credible that anyone would think that [Mr A] or the supervisor’s mother would have sought assistance from the applicant without first contacting the applicant’s father. The fact that TL have not sought to harm the applicant’s father is further evidence that TL have no interest in the applicant or his family.

142.   If TL were also keen to know when the applicant returns so they could harm the applicant, it also lacks credibility that they would do nothing in the past five years to hasten his return such as kidnapping a family member to force the applicant to come back to Pakistan. An organisation as violent and willing to kill blasphemers as the applicant claims the TL to be, would surely not resile from kidnapping a family member to force a blasphemer to return so they could be killed. Country information indicates that supporters of the group have even taken security force personnel hostage in the past, so they are willing to detain people for their advantage.[4]

Other Issues

143.   The applicant has previously been denied visas for [Country 4] and [Country 1] (although he had an earlier [Country 1] visa approved). He had claimed to be a member of the Jhelum [Organisation 2] when asking to travel to [Country 4] but the visa was denied. He provided copies of documents that he indicated were proof of his membership of the Club and hence the legitimacy of his [Country 4] visa application.  The Tribunal is unable to lend the documents he provided with much weight given they lack security features and country information indicates that document fraud is widespread in Pakistan.[5]                      

144.   Prior to the hearing the applicant was asked to provide evidence of his contact with any Australian [Organisation 2] branch as evidence of his membership of the group. He did not provide any and stated that he did not join a group because of the stress he was under. He provided no medical evidence in support of his stress claim and I note that he was working as [an Occupation] despite his claim of stress. Whilst I accept that one needs income to survive, it also raises concerns in the Tribunal’s mind that if he wasn’t too stressed to hold down a job then perhaps he was also not too stressed to have some contact with [Organisation 2] Australia.

145.   The applicant was also asked if he had any photographic evidence of his membership of, and activities with the Jhelum [Organisation 2] either on his own or the [organisation]’s social media sites. He said that he did and asked for and was given additional time to provide this. He provided no such evidence – at the second hearing he claimed that he had some photos on his phone however the Tribunal declined to view them as it was concerned that they could be photoshopped and the applicant had been given opportunity prior to the hearing to provide them and any [Organisation 2] social media sites that would have provided a much weightier record of his participation. The Tribunal is therefore not satisfied that his Jhelum [Organisation 2] membership is genuine and that he has used it in order to gain a visa for entry into [Country 4]. This goes to issues of his credibility.

146.   As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicant will face serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.

Complementary Protection

147.   Because I do not accept that the applicant ever provided assistance to ‘Uncle [A]’ or any other Ahmadi following a fire in November 2015 or that rumours were spread that he had, that this was ever reported to the Islamist group TL, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

148.   As a consequence, I also do not accept 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 the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).      

[4] Clashes in Pakistan after TLP takes several police hostage | News | Al Jazeera, accessed 13 September 2023.

[5] DFAT Country Information Report – Pakistan dated 29 January 2022, p 47.

CONCLUDING PARAGRAPHS

149.   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).

1. 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).

2. 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

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

Rodger Shanahan
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.

…