1913348 (Refugee)

1913348 (Refugee) [2024] AATA 4453 (4 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Joey Bich Chau Tam
CASE NUMBER:  1913348
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Bryn Butler
DATE:4 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 October 2024 at 11:00am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Sunni convert to Shia in Australia – threatened and attacked during return visit – business dispute with friend – fear of harm from relatives, community and extremists – further return to support wife – physical and mental health – cost of relocating – no pursuit of pathway to permanent residency when eligible – no documentary evidence of business – no harm to wife and children – employment history – country information – risk of sectarian violence – real chance of persecution does not relate to all areas of country – relocation reasonable – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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

The applicant is a [Age]-year-old man who is a citizen of Pakistan. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 July 2017. The delegate refused to grant the visa on 22 May 2019 on the basis that they were not satisfied that the applicant was owed protection by Australia.
The applicant appeared before the Tribunal on 4 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's Psychologist; and [Mr B] and [Mr C] who are the applicant’s friends. An Urdu interpreter was provided at the applicant’s request, however he elected not to use the interpreter during the hearing and gave his evidence in English. I am satisfied that the applicant was able to converse in English and participate meaningfully in English.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
I have had regard to the reports on the applicant’s mental health and the Migration and Refugee Division Guidelines on Vulnerable Persons. The applicant was offered breaks throughout the hearing and had his representative with him in the hearing room for support, and his psychologist gave evidence and was available outside the hearing room at other times during the hearing.
I have had regard to the information provided about the applicant’s mental health and the Guidelines and am satisfied that the applicant was able to meaningfully participate in the review. I found that the applicant was able to understand my questions and provided answers addressing my questions throughout the hearing. I acknowledge that the hearing process can be stressful for applicants. I found that he remained attentive throughout the hearing. During the hearing when he was unsure of a question, he asked for clarification before responding. I did not observe the applicant disengaging from the hearing process, as his responses indicated that he was listening to my questions, and he responded accordingly.
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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s claims for protection
The applicant arrived in Australia on a student visa in 2009. He held a Temporary Graduate (Subclass 485) visa from 4 May 2017 to 21 July 2017. As noted above, he applied for the protection visa on 18 July 2017.
In his visa application, the applicant set out his claims for protection, which are summarised as follows:
·He is from the Bagh Azad district in Kashmir, Pakistan ([Village]). He was born into a Sunni Muslim family and has [siblings].
·While he arrived in Australia, he lived in shared accommodation in Melbourne. He met a man, named [Mr D], who was also from Pakistan and a follower of the Shia sect of Islam. He did not have any Shia friends when growing up in Pakistan. He kept his distance from [Mr D] because he was not comfortable sharing common areas with [Mr D] because of what he had heard from relatives about Shias. He did not want to interact with Shias.
·He was running late for work one day, and [Mr D] offered him a lift to work, which he accepted. [Mr D] told him that they are of the same ethnicity and come from the same country, and that they should help each other. He invited [Mr D] to lunch to thank him for his assistance, and they became friends.
·This friendship led to the applicant investigating the Shia faith online, as he was curious as to why Shias were hated in Pakistan. He later discussed the Shia faith with [Mr D], which led to the applicant attending Shia gatherings and discussions with people who are knowledgeable about the faith.
·After attending a few gatherings, all his questions were answered. He was overwhelmed and emotional after attending gatherings over Moharram in January 2010.
·By June 2010, he was convinced of the Shia faith and started practising and believing in it. It was a life changing decision, and he was aware of how his immediate family and extended family would respond, but practising Shia Islam was more important to him.
·In September 2013, he returned to marry his first cousin, who he was engaged to since childhood. He disclosed his faith to his wife a few days after their wedding. She was shocked but accepted it. He didn’t tell the rest of his family about his conversion. He shared his conversion was a childhood friend in Pakistan, who he trusted, and then he returned to Australia. He returned to Pakistan three times and did not tell anyone in his family about his conversion.
·He claims he attended a Shia Mosque in Melbourne as much as he could. After living in Australia for eight years and obtaining a Diploma of [Subject 1], he decided to return to Pakistan to live with his wife and child. He had arranged to open [a] business in partnership with his childhood friend who he had disclosed his conversion to the Shia faith to. He had provided him with his share of the investment before he went to Pakistan, as his friend wanted to organise the place and shipment of equipment from major cities in Pakistan. He trusted his childhood friend.
·When he returned to Pakistan in May 2017, he attempted to contact his childhood friend but was unsuccessful. He managed to track him down on 20 May 2017. The friend refused to return his money and told him that he had nothing to give him. His friend then made threats that if he kept asking for money, he would tell everyone about his conversion to the Shia faith, which would cause problems for him. He was shocked that his friend would threaten him. Some people intervened and he left with a couple of friends.
·He considered taking legal action against his friend. His family told him that when he was out of the house, some armed men had come to the house and asked for him, and told his family that he had changed his faith to Shia and committed blasphemy. He denied to his family that he had converted.
·The next morning, when he was driving to the city centre to see a lawyer, a car pulled him over by putting on their brakes in front of him. Four armed men got out of the car and approached him. They opened his car door and were trying to pull him out of the car. When he resisted, they threatened to kill him. He received a blow from one of the men with the back side of his gun. He managed to drive off with the car doors open and then went to a police station.
·He reported to the police what happened to him and made a report (a translation of the First Information Report (FIR) was provided to the delegate). He considered that the police’s attitude changed when he said he had converted to Shia, and that the police did not seem interested. He was told they could not file an FIR against his friend as it was a personal matter and there was no evidence. The FIR was filed against unknown people.
·He went to the nearby hospital because his nose was bleeding (the medical report was provided to the delegate).
·He told his family about the attack. His father told him there were suspicious people walking around the house, and suggested that he not return home. The applicant stayed at a motel in Rawalpindi for a night and then booked the first available flight out of the country. The applicant returned to Australia as he held a Temporary Graduate visa at the time.
·News of his conversion to the Shia faith spread into the community and has reached Sunni extremists, who also believe that he has committed blasphemy. They have made threats to him, tried to abduct him and he fears that he returns, he will be targeted again, or tortured.
The applicant submitted evidence in support of his claims to the delegate, which includes:
·A letter from the [Medical Centre] dated 22 May 2017, which refers to the applicant being in a fight 10 hours prior to presenting at the clinic.
·The FIR, dated 22 May 2017, and translation of the FIR. It states that the applicant as on his way to the city of Dhirkot at 2pm when four unknown people stopped him, tried to abduct him, and assaulted him. He has a wound on his nose and he received threats of killing and abduction in the past from unknown people. The reason is reported that he has converted to Shia faith, and his family is receiving threats because of this. It notes that the report is based on the applicant’s account.
·Photos of a wound on the applicant’s nose and a bruise on his arm.
·An email from the applicant to his workplace dated 18 April 2017 saying he intended to move back to Pakistan as his visa was about to expire in July. There was a reply from his workplace on 19 April 2017 and 21 April 2017, asking him to confirm his final shift date. There is no evidence that the applicant responded to these emails.
·An email dated 6 April 2017 about his superannuation. He enquired about how to get it paid out as he wishes to leave Australia when his temporary visa expires in July.
·Medical report of 28 November 2017 regarding his spine and a bulging disc.
·News articles about a student in Pakistan who was accused of blasphemy and was killed.
The delegate accepted that the applicant had converted to the Shia faith, but did not accept that he was assaulted as claimed in May 2017 or that Sunni extremists consider he had committed blasphemy.
Material submitted to the Tribunal
Prior to the hearing, the applicant provided a statutory declaration dated 26 August 2024. The statutory declaration is largely consistent with his earlier statement submitted to the department. In his statutory declaration, he states the following:
·In 2016, he was fortunate to be granted a Temporary Graduate Visa, which provided an excellent opportunity to gain valuable work experience in Australia, which opened a pathway to apply for a permanent visa. If he had pursued this option back in 2016, it would have set the foundation for a longer-term stay in Australia. He notes that this option remains available to him.
·In December 2021, despite the threats, he made the extraordinarily difficult decision to return to Pakistan, which was prompted by his wife’s severe distress and near-suicidal state due to loneliness and familial pressure in his absence. He also suffered severe crippling back pain from his physical work as [an occupation 1] causing L5/S1 disc protrusion and severe canal stenosia. His Orthopaedic Surgeon recommended extensive surgery which, due to the Covid-19 pandemic, he was unable to secure public treatment for. He was unable to afford private treatment in Australia. Given these reasons (his need for surgery and his wife’s state), he decided to risk his life by travelling back to Pakistan.
·In Pakistan he spent five months in near-complete isolation with his wife and daughter, and his return remained a secret. He was able to afford this using money from Australia. His wife became pregnant, but suffered a miscarriage due to stress and fear about the threat of their child being abducted by extremists. He opted to not have his surgery and instead support his wife and [Age]-year-old daughter.
·In April 2022, his wife received a phone call from her family who were abusive and threatening. They had learnt about her pregnancy and miscarriage. To defend herself from their accusations, she informed them that the applicant was with her. Her family demanded to know their location. His wife later told him that she had shared the news of her miscarriage with a friend, who communicated it to her family. His wife urged him to leave the country, but he could not bring himself to leave her in a vulnerable state.
·They changed their residence due to the threat. He returned to Australia [in] May 2022 (department records indicate he returned [in] June 2022). They have another daughter (who he has not met).
·He states that, “as an adult, I made a conscious and irrevocable decision to change my faith, a choice that fundamentally defines my identity and spirituality. Reverting to Sunni Islam would neither be genuine nor accepted by the extremists who already view my conversion with hostility. The attack I endured in 2017 confirms to me that word of my conversion has spread. Attempting to revert and return to Pakistan would result in severe spiritual and social consequences for me and my family. I believe that changing my religious beliefs would anger God in this life and the hereafter, leading to immense suffering for my family and I.”
·He claims that he is financially unable to bear the cost of relocation and continuous daily living expenses within Pakistan. He notes that Islamabad is the only city which might offer a semblance of safety. He provided data about the cost of living in Pakistan.
·He does not consider that the Pakistani authorities could protect him, or that they are capable of, or interested in protecting him, from the threats he faces. He does not consider that relocating would safeguard him from persecution, and does not believe there is any location in Pakistan, including Islamabad, where he would be able to live a safe and dignified life.
·He is contributing to Australian society. He holds a Diploma of [Subject 2] and is currently [an Occupation 2].
[In] December 2021, the applicant returned to Pakistan and remained there until he returned to Australia [in] June 2022. He was granted a Bridging visa B with a return travel facility, valid until 24 June 2022.
He submitted to the Tribunal information from the Department file about the Bridging visa B application. This information provides that he was granted the Bridging visa B on the basis that he would go to Pakistan for back surgery and provided evidence to the department of a letter confirming he had an appointment on 8 January 2021 at a hospital in Mirpur, Pakistan. He had also earlier informed the department that his physical health was deteriorating due to issues with his back and that he was advised he would need major surgery with a minimum of six months’ recovery time. He had informed the Department that his family were in Pakistan and had no one to assist him with his recovery in Australia. He had previously said he had organised with his cousin, a medical professional, in Karachi and that if he had his surgery performed there, his immediate family could travel there and provide care to him while he recovers. He said that if he is very cautious and stays indoors, he believes he would be safe for a few months. He noted that Karachi is located far away from his hometown.
The applicant provided to the Tribunal information in respect of his trip to Pakistan. This includes the following:
·An information sheet about the [Hospital] in Rawalpindi and a cost estimate dated 14 March 2022 from the [Hospital] for a spine procedure.
·A report from [Diagnostics], Rawalpindi, dated 15/03/2022 in respect of an MRI for the applicant’s lumbar spine region.
·Antenatal card for his wife dated 14 March 2022 showing she was pregnant.
·Hospital documents for his wife dated 22 and 23 March 2022, showing she had miscarried, and an ultrasound dated 29 March 2022.
·AirBnb receipt dated 18 December 2021 showing he had booked 13 nights in Islamabad in a 2-bedroom property.

The applicant also provided two statutory declarations from his psychologist, [Ms A]. Those reports are dated 30 July 2024 and 20 August 2024. She notes that she commenced psychological treatment with the applicant in June 2024, and he has attended five sessions. These reports contain [Ms A]’s diagnosis that the applicant has anxiety, depression and post traumatic stress disorder (PTSD). [Ms A]’s assessment is that the applicant’s psychological conditions are due to the threat to his life he experienced in Pakistan. She has recommended that he continue with treatment to assist improvements of his diagnosed conditions and symptoms. The reports also contain [Ms A]’s summary of discussions she had with the applicant during their five sessions. There are some differences between these two reports (discussed below).
His friends, [Mr B] and [Mr C], provided statutory declarations. His friends state that their belief is that the applicant would face harm in Pakistan, and refer to his mental distress at being separated from his wife and family.
Hearing
At the hearing, the applicant said he faces harm from his extended family and community because of his conversion to the Shia faith. He said that everyone in his society knows about his conversion, including his family, his extended family, his wife’s family and his wife’s extended family. He said that, prior to 2017, in Pakistan only his wife and his childhood friend knew about his conversion. He also said that in Australia, only his friend who introduced him to the Shia faith knew about his conversion, and that his cousins in Australia were not aware of his conversion. After his return to Australia in 2017, he said that he told friends and acquaintances in Australia about his conversion.
Conversion to Shia faith
He said that being Shia meant he had to change his faith, and when he first went to a Shia gathering with his friend, [Mr D], he cried because something had switched inside of him, and was pulling him towards the Shia faith. He researched the Shia faith, read books, listened to scholars and developed a close insight into the Shia faith.
I asked him why he had decided to change his faith. He said it seemed more logical to him than the Sunni faith in respect of the leadership structure. He explained that after the death of the prophet, there was no leader for the Muslim world. The Sunnis preferred a committee whereas the Shias wanted the leadership to remain in the prophet’s family, and chose the cousin of the prophet to be the next leader. He said that this appeared to be more logical because the leadership remained in the prophet’s family. I asked him to explain how it was more logical, and he said that it was more of a spiritual or divine concept in the Shia faith as the spiritual and religious leaders are drawn from the same group whereas in the Sunni faith, the political leader is different from the religious leader.
He said that, after researching the Shia faith, he decided that it is very different from what he was taught in Pakistan. He said that Sunnis view other sects are non-believers, and that Sunnis want to impose Shariah law by force, encourage violent ideology, have views on women’s roles and are opposed to modern science and technology. By contrast, he has found that the Shia ideology is non-violent, and there is respect for truth, justice and all people; this has impressed him.
He also explained how he prays and that the differences between the way they pray is not great, such as Shias being able to pray three times a day by condensing two prayers into one, and that they use a stone to pray. He sometimes attends mosques in Melbourne but nowadays he practises his faith by accessing online resources, such as YouTube groups, Facebook pages and WhatsApp groups. He provided the names of various groups that he is a part of.
Business partnership with childhood friend
I asked the applicant about his childhood friend who he claimed to have told about his conversion, why he had told his childhood friend, and when this discussion took place. He said that he told [Mr E], the childhood friend, when he returned to Pakistan in 2013. He told him because he was a childhood friend who he trusted. He said that because the change in his faith was a big event for him, he needed to tell someone. He added that his friend was open-minded when they were growing up, which meant that he thought his friend would be accepting. I noted that he was concerned about his safety, and for that reason he hadn’t told any of his contacts in Australia about his conversion, so it may appear that there were risks involved with telling his friend in Pakistan. He said that it was a mistake, but it was a friend who he trusted a lot.
After telling his friend, the applicant didn’t have regular discussions with his friend about his faith, but they discussed starting a business together in Pakistan. His friend opened a [Goods 1] business in Derkot after he had finished school, although the applicant could not recall exactly when his friend opened the business. The applicant said his friend’s business was successful, and that his friend was importing [Goods 1] from Quetta, Pakistan and selling [Goods 1] in the local market.
The applicant said that he had bigger plans for [a] business, and wanted to import [products] to Pakistan from [Country 1] which had been [damaged] because labour is cheap in Pakistan and they could restore them. He said that he got the idea from acquaintances in Australia. He decided in 2016 that he wanted to start the business.
I asked the applicant about his business plans for his [business]. He said that he told his friend that he (the applicant) would manage the business because he had studied [subject] in Australia, and his friend had knowledge of the local market. I asked the applicant why this plan would be advantageous for his friend, considering his friend already had a successful local business. He said that it was a good idea and his friend’s business was small. I asked the applicant where he was planning to source [products] from. He said from online, and that he could also go to auctions in [Country 1]. I asked him where the auction houses were, but he said he didn’t know and his friend hadn’t given him a chance because when they were about to start the business, his friend stole his money.
In respect of the applicant’s departure from Australia, in May 2017, I noted that he had two months remaining on his Temporary visa, which meant that he could have remained longer and obtained more work experience in Australia. The applicant said that his friend had called him and told him that everything was ready, so he was excited to go to Pakistan. The applicant provided emails showing that he had told his employer he was returning to Pakistan (from the documents provided the applicant did not respond to his employer’s enquiries about his last shift date), and had made an enquiry about obtaining his superannuation. He also provided at the hearing a copy of a booking for a one-way ticket from Australia to Pakistan, and a one-way ticket from Pakistan to Australia. I asked whether he had evidence of closing his bank account in Australia, or anything else, and he did not. The applicant said it would have been very easy for him to apply for permanent residency in 2017. I noted that it would have depended on his skills at the time, and whether he met the requirements at the time.
The applicant claimed that he had given the equivalent of AUD$40,000 to his friend to start up the business, which consisted of $20,000 of his savings from Australia and a $20,000 loan from his father. I asked the applicant whether he had any evidence of making the payments to his friend. He said that he was transferring money to his wife’s account in Pakistan and that his wife would give his friend the money in cash, and so he didn’t have records. I asked when his wife started transferring money to his friend, and he said it was in 2015/2016. I noted that plan for a joint business with his friend was in 2016. He said that he had been transferring money to his wife’s account, but it was from 2016 that she started giving the friend money. I asked why his friend would need $40,000 for the business. He said they needed to arrange a place and buy equipment for the shop. His friend said he was doing these things, and the applicant trusted him, but he didn’t do anything and took the money.
I discussed with the applicant that, given the substantial amount of money which had been transferred to his friend over a six-month period, there may be a record of these transactions. The applicant said there might be a record, but whenever his friend asked for money, his wife would give him the money. He then said she would sometimes give the friend money in cash, and sometimes do a bank transfer. He noted that they didn’t record it, and he trusted his friend a lot. The applicant was given two weeks after the hearing to submit any evidence of transactions from himself to his wife in Pakistan, and from his wife to the friend. As at the date of this decision, no information has been provided.
I put to the applicant that it was surprising that a childhood friend, with whom he had decided to share his conversion to Shia Islam, and who he had described as open-minded, would effectively decide to steal $40,000 from him. The friend also already had a successful business. The applicant said that his friend became greedy, and he didn’t know what happened. His friend spread the news of his conversion and accused him of blasphemy.
I asked the applicant whether there was a particular incident which led to the breakdown of his relationship with his friend. He said that it was greed, and that he took the money. It was in 2017 after the applicant had returned to Pakistan that his friend stopped answering his calls, and avoided contact with him. He eventually found his friend, and told his friend that he was behaving strangely. He asked his friend for the location of the business, and what had happened to the money; however, his friend responded that he didn’t have any money and that if he (the applicant) keeps asking for money, he would let the community know about his conversion and say he had made comments against the prophet. The applicant said that he thinks his friend found an easy way to not give the money back, and this was because of his greed. He didn’t know what happened to his friend since he left Pakistan in 2009, and that circumstances had changed.
I asked the applicant whether he knew what his friend was doing now, or whether he was aware of the friend’s family and in contact with them. He said that it was painful to think about, that he has restless night, and he has stopped thinking about his friend.
Incident of 22 May 2017
The applicant described the attack of 22 May 2017. He said he was going to see a lawyer and was travelling towards the city when a car came in front of him, and suddenly applied its breaks. Four people then came out of the car. He was alone in the car and they tried to pull him out and said that he had committed blasphemy. He said that somehow he drove away with the front cars doors opened. I asked how he was able to drive off with the doors open and the men were on the sides of the car. He said that he was concerned about his safety and was only thinking about how to save his life. I asked him whether there were other people around, and he said there were not many cars around him. He said he has no idea what happened to the men who had attacked him after he drove off. After the incident, he went to the police station to report what had happened to him. He also went to a medical centre.
He said that he doesn’t have any issues with any other people, and had been in Australia for the previous eight years so he thinks that, because of what his friend said, he was attacked. There were no other incidents in Pakistan, and he returned to Australia [in] May 2017. His father told him not to return to Australia.
He recalled that around the same time, in April 2017, a student in Pakistan was killed for blasphemy, and this was in his mind so he was terrified. He went straight to Rawalpindi (to avoid returning home), because he didn’t want to be another person killed because of blasphemy allegation.
Situation for his wife and daughters in Pakistan
He discussed the current situation for his wife, and daughters. He said they had been living in Islamabad since 2020 in a house paid for by him. I asked him why his wife had moved to Islamabad. He said that his parents found out in 2019 that he had converted. His wife and daughter, who had been living with his parents, were asked to leave, as his parents considered their lives were at risk and could not care for them anymore. His wife and daughter went to live with his wife’s parents for six to seven months, and then she moved to Islamabad. I asked him why she left her parents’ house. He said that it was because Sunnis are not allowed to marry Shia, and when they had found out about the conversion, they said it was not legally correct, it was not acceptable for her to have married a man of the Shia faith, and so they pressured her to leave him. Her parents said that the applicant would not return and that they would find another man for her. Due to familial pressure, they decided, as a couple, that she should leave her parents’ home and move to Islamabad. I asked him what her parents said about her moving out and living independently in Islamabad. He said that they didn’t say anything, but that they pressured her through phone calls and through friends.
The applicant said that after he was attacked in 2017, the whole community (including his extended family) thought that something had happened to him and the news spread that he had converted. He initially told his parents that he hadn’t converted and that his friend had falsely accused him, but as the news had spread, he had to tell them he had converted. He said that they disowned him and said that they could not take care of his family (wife and daughter) anymore.
When his wife moved to her parents’ house, they asked her why she had moved back, and she informed her parents that she had been disowned by her husband’s parents and she had to disclose that the applicant had converted to the Shia faith. I asked him whether her parents were accepting of his wife, and why they allowed her to remain there for six to seven months. He said that they allowed her to stay but they pressured her, and that they considered her marriage to the applicant to have ended. The applicant also raised that he is concerned that his daughters may be kidnapped by the extended family, and that his older daughter is not attending school because he is fearful she would be kidnapped from there.
Applicant’s return to Pakistan in 2021
At the hearing, he said that when he returned to Pakistan, he went to Islamabad and stayed in an Airbnb which was in a different location from where his wife usually lives in Islamabad. He provided evidence of an Airbnb booking for 15 days. He said that once he got to Islamabad, he spoke to the landlord, told him he came for back surgery, and that it’s difficult for him to move again and again, and so he extended his stay in the property. After his wife’s miscarriage, he said they changed their accommodation because he was afraid that people would locate them. He rented properties from the same landlord.
I noted that he had told the Department he would go to Karachi for surgery. The applicant said that one of his cousins was there and was doing specialisation in neurosurgery. The applicant has not had the surgery. I put to him that his stated reason to go to Pakistan was his surgery, despite his fear of returning, he went and stayed in Pakistan for almost six months in Islamabad which was closer to his hometown where he claimed to fear harm. He said that he was thinking of going to Karachi, but later he had an appointment in January in a town closer to Islamabad. I noted that there was evidence of this appointment in Mirpur on 8 January 2022 and an appointment in Rawalpindi on 15 March 2022. He then said that when he landed in Pakistan, he was thinking differently, and he hadn’t been there for five years, he realised he had made a mistake, it was stressful, and was thinking everyone was looking for him. He said that he was taken to a room for investigation at the airport because he was sweating. The applicant did not further explain what prompted him to change his mind and book an Airbnb in Islamabad, and remain there, rather than go to Karachi.
I put to the applicant that, given the claimed danger to him, he could have arranged to meet his wife in a third country such as [Country 2] or [Country 3]. He said that it was because of his visa conditions and that he would not be able to obtain a visa for any other country. He then gave an example of a cousin who got married in [Country 4] and he could not go there because he was not able to obtain a [Country 4] visa. I noted that [Country 4]’s requirements would be different from [Country 2]’s requirements for entry. He then added he would not get a visa because of covid restrictions at the time. I asked him whether he tried. He said he was searching but it was doubtful that he would be successful. Given the danger he claimed to face in Pakistan, it is surprising that he would not attempt to get a visa for a third country, such as [Country 2] so that he could see his wife. I put to him that I also find it surprising that, in his circumstances, he would voluntarily return to Pakistan and remain there for almost six months in Islamabad, which was the period of time he was granted by the Department on his Bridging visa B, and that he claimed he needed surgery and needed six months to recover from surgery, but he did not go through with it. He noted that he went to the clinic in March in Rawalpindi, and they approved the surgery, and when the date became available, they would let him know, but at the same time on 22 March his wife had a miscarriage. He then opted to not go for surgery as he thought he should remain with his wife.
The applicant had two purposes for his return to Pakistan in 2021/2022. One was the surgery, and the other was because his wife was lonely because of familial pressure. He said that he was concerned she would suicide, so he wanted to support his family and get surgery at same time. He noted that his friends told him it is a dangerous situation and that he can explain to the AAT and the AAT will be able to feel his pain.
I said I would have to take into account the fact that he voluntarily returned to Pakistan, in the circumstances he described, and that he chose to remain there for six months. He said that when he was in Pakistan, he realised he had made a mistake and that he had sleepless nights and thought people were chasing him. I asked him why he remained in Pakistan for as long as he did, if he was concerned for his safety and had sleepless nights. He said that he had wanted to get his surgery done, and then he would return to Australia. I note that he arrived on 29 December 2021 and did not have the MRI required for his surgery until 14/15 March 2022. He said he needed some time to get settled.
He said that his wife told him to leave Pakistan for his safety. He said that he didn’t meet anyone else in Pakistan, apart from his wife, and he remained at home. I noted that in one of the psychologist’s reports, it says he met his parents for 15 minutes before leaving and in the later report, it says he didn’t meet them. He said there must be a mistake and it is very hard for him to recall the information. He stated that he did not meet his parents or his siblings, because he didn’t want to put their lives at risk and his purpose was to support his wife and get surgery.
I asked him to describe what happened in Pakistan that led to him changing accommodation. He said that after his wife’s miscarriage in March 2022, she got a call from her parents. They told her that they had heard about the miscarriage and wanted to know what happened. They thought that she was involved with another person, but his wife told them that she hadn’t committed any crime and that the applicant was with her. He was then terrified. I asked the applicant why his wife, who was aware of the claimed threats to her husband, would tell her parents. He said that she had shared news of miscarriage with a friend, and that friend spread the news to her family. He was annoyed with his wife for doing that. He could not explain why she would take such a risk and suggested it might have been because of her poor mental health.

His claimed that his wife cut contact with her parents after the phone call, and they changed their accommodation so that they could not be traced. He was concerned that his wife’s family and extremists might trace them through the mobile phone signal. I asked him how they would be able to do that. He said that if they wanted to, they could and it was his fear because with Sunni extremists, if they want to find you, it is a matter of days or months. I noted that he was in Pakistan for almost six months, including from time in March when his wife’s parents found out he was in Pakistan until mid-June and nothing happened to him. He said that it was his fear, and that what saved him was because he used his Australian ID to rent the property and buy a SIM card. He explained that if he had used a Pakistani ID, they would be able to trace him. I asked him whose name he rented the property in. He said that it was in his name, using his Australian ID. He reiterated that he had used his Pakistani ID, they would have been able to trace him in a matter of days.
Witness evidence at hearing
I took evidence from the applicant’s psychologist, and have had regard to her two reports provided to the Tribunal, which are summarised and referred to above.
His psychologist emphasised that for her clients experiencing PTSD treatment is possible and effective when they are away from the source of danger, and it is difficult to treat if they are in the same location where they were targeted.
I confirmed with her that her reports are based on notes that she takes while she is counselling her client. She confirmed this was the case. I asked why, for example, in her report, dated 29 July 2024, she had said that the applicant met with his parents for 15 minutes, where as her report dated 20 August 2024 says he didn’t meet with them prior to departure from Australia. She said that she can only go off her conversations with the client. She couldn’t recall the specific situation, and that her notes are quite documented. She noted that she is assessing a client for their psychological condition rather than statement of fact. She noted that it’s important for credibility, but she assesses credibility in other ways such as whether responses are likely to be rehearsed. I noted that there was another discrepancy, such as in the 29 July 2024 report she recorded that when the applicant went to Pakistan in 2021, his accommodation was arranged by the brother of a friend, but in the later report it is recorded that he booked an Airbnb. She said that the later report would have been based on her clarifying the situation with her client and she was trying to make sure it was as accurate as possible, and that again it would have been taken from her notes.
She said that in her consultations, the applicant has been consistent in terms of his presentation of his psychological status, his non-verbal behaviour was consistent with the diagnoses of anxiety, depression and PTSD. She noted her role was to assist him with strategies to best present his case in a genuine and authentic manner so that the Tribunal is in the best position to make a decision on his case.
She also noted that it is typical for a client with PTSD to present to her after being notified of a hearing at the Tribunal. One of the criteria for a PTSD diagnosis is to avoid any discussion about the incident and so it doesn’t make sense for a person to seek out psychological assistance because they would be required to discuss the incident.
I took evidence from the applicant’s friend, [Mr B]. He said he has known the applicant for about 15 years and met him in Australia, and they played [sport] together. He said that he learnt about the applicant’s conversion to Shia in 2019 or 2020. He said that when he visited Pakistan in 2019 or 2020, he returned to Australia but stopped playing [sport]. He asked him why he wasn’t playing, and he told him about his back issue and conversion and what happened to him in Pakistan.
I asked him what he knew about the applicant’s plan to return to Pakistan permanently. He said that he thought he moved in 2015 or 2016. He thought he was going to start a business, said his friend ran away with his investment.
[Mr B] said that he sees the applicant one or twice a month, but used to see him more frequently when they played [sport] together. He noted that he wasn’t happy that the applicant hadn’t disclosed his conversion to Shia earlier and that he was from an openminded family, but understood that he wasn’t comfortable discussing it with people. He also recounted his own personal history, including that his brother who is an atheist was on a list of the Taliban because he was actively promoting atheism.
I asked him he said in his statutory declaration that it is his firm belief that the applicant faces a substantial threat to his life. He said that it is because of what happened to the applicant and people in the region in Pakistan and know about the applicant’s conversion. He said that when he ([Mr B]) had returned to Pakistan in 2021, he had been asked by people about the applicant and whether he had converted. The applicant and [Mr B] are from the same region in Pakistan. He stressed that he didn’t tell people about the applicant’s conversion but that it came into conversation, and they were not happy about it. I asked him who he had spoken to, and he said it was people from the community. He recalled going to the market, and a couple of people asked him about the applicant’s conversion. He said he didn’t talk to them in detail and was concerned for his own safety.
He said that his wife knows the applicant’s wife, and added that he thinks the family is pushing his wife to cut ties with the applicant and move on because they don’t want her to be harmed. He referred to the applicant’s mental state in 2021 (prior to his trip to Pakistan in December 2021), and that looking back at his state of mind then, he was not in the right frame of mind.
The applicant’s other friend who gave evidence, [Mr C], said the applicant is one of his oldest friends in Australia. He said that he became a citizen in August 2015. He said that they completed one year of a certificate course together, but he changed his path and did further qualifications and did a [subject] certificate as well. When the applicant was going to leave the country permanently, they met for lunch and said good-bye and he got a phone call two to three years later from the applicant, and he said he had returned and they first discussed his conversion to Shia.
He said that he has seen the applicant go through stress, and the toll it has taken on his physical and mental health. He said that when the applicant made the decision to return to Pakistan in December 2021, he reached out to Lifeline on the applicant’s behalf because he was a different person altogether then, and was concerned for the applicant. However, the next thing he knew, the applicant had left Australia.
He said that when the applicant was in Pakistan from December 2021 to June 2022, he spoke to him three to four times a fortnight. He reported that the applicant was fearful of people and he reminded the applicant to be mindful of his surroundings, and said that if he had to return to Australia, he should return. He said that the applicant told him about his wife’s miscarriage and how the news got leaked, that his family found out about his presence in the country and that he had to leave the country.
I asked him whether the applicant had disclosed to him why he returned to the country in 2021. He said that it was because his daughter was missing him, and his wife was suicidal. I asked him whether he was aware of the applicant’s need for surgery. He said that he was aware of it, and the main motivation was because he had stayed away from his family for so long.
Country information
DFAT reports that Pakistan is home to the world’s second-largest Shia population, and that an estimated 20-40 million Shia live throughout the country, constituting 10-20 per cent of the population.[1] There are significant Shia communities in Karachi, Lahore, Rawalpindi and Islamabad.[2] Most Pakistani Shia are not physically or linguistically distinguishable from Sunnis and national censuses do not distinguish between them.[3] Shia are generally able to establish places of worship and practise their religion without overt state interference.[4]
[1] Department of Foreign Affairs and Trade, Country Information Report – Pakistan (25 January 2022) (DFAT Report), para 3.55.
[2] DFAT Report, para 3.55.
[3] DFAT Report, para 3.56.
[4] DFAT Report, para 3.57.
Shia and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’.[5] This is consistent with the applicant’s claim that his relatives, and wife’s relatives, do not approve of his conversion.
[5] DFAT Report, para3.57.
It is reported that Shia face rising religious intolerance and official discrimination in the form of blasphemy accusations, with over 70 per cent of cases being against Shia.[6] There is also reported anti-Shia sentiment in politics. Sectarian tensions fare during Muharram, when Shia mourn the killing of the Prophet’s grandson and his family.[7]
[6] DFAT report, para 3.58.
[7] DFAT report, para 3.59.
DFAT notes that Shia have historically been targeted by sectarian terrorist groups, but the frequency of attacks has declined since 2013.[8] DFAT assesses the Shia in Pakistan face a moderate risk of sectarian violence, although the situation has improved in recent years.[9] The applicant’s representative in her written submission has also referred to attacks on Shia in Peshawar, and the Kurram district of Pakistan (both in the Khyber Pakhtunkhwa province).
[8] DFAT report, para 3.60.
[9] DFAT report, para 3.61.
DFAT also assesses that Shia face a moderate risk of societal discrimination in the form of anti-Shia protests and community violence.[10] Some ethnic groups which are predominantly Shia face specific heightened risks.[11]
[10] DFAT report, para 3.61.
[11] DFAT report, para 3.61.
The overall security situation in Pakistan is reported to have deteriorated since mid-2021.[12] I note that DFAT’s report is from 2022. However, there is no indication that there has been a marked change in the situation for Shias in Pakistan.
[12] DFAT report, para 2.34.
The applicant has been diagnosed with anxiety, depression and PTSD. According to DFAT, mental health disorders are reportedly common in Pakistan, and options for treatment are limited, and more than 90 per cent of people with common mental health disorders go untreated.[13] The overall standard and availability of healthcare in Pakistan is reported to be low.[14] There is no indication that healthcare is withheld from specific groups or populations relevant to the applicant’s situation.
[13] DFAT report, para 2.14.
[14] DFAT report, para 2.10.
The applicant has also provided information about the cost of living in Islamabad, which I have considered. He has submitted that it would be too expensive for him to live there on a long-term basis.
Findings
I have considered all of the evidence before me. The applicant has given a plausible account of his conversion to Shia Islam. He was able to outline the differences between the Sunni sect and Shia sect of Islam, such as political differences and the way the two sects pray. He acknowledged that the differences in pray styles was not that different. He also listed various online groups which he is a member of. While his conversion has created significant problems for him, I accept that he converted to Shia Islam in 2010.
However, I have significant doubts about his claim that he informed his childhood friend in 2013. The applicant appears to be a self-aware and careful person who was aware of the danger of converting to the Shia sect in Pakistan. Prior to the claimed 2017 incident, he has claimed that he did not tell any of his relatives or friends in Australia who had connections to Pakistan, for fear that the news would then spread to Pakistan. It is difficult to understand therefore why he would take a risk to inform one friend who was located in Pakistan in 2013, three years after his conversion. While he has claimed that it was his close childhood friend who was open-minded and that he needed to tell someone, his evidence was that he didn’t speak to the friend about his faith after 2013 and that they discussed the business partnership from 2013 onwards. It is not clear why the applicant informed his friend in 2013, around the same time he told his wife in these circumstances. I am not persuaded by the applicant’s evidence about the reasons for telling his friend, particularly given the level of claimed risk to the applicant and his wife and the applicant’s careful nature. I do not find it plausible and do not accept that he would tell an old childhood friend about his conversion three years after his conversion.
I am also not satisfied about the applicant’s evidence in respect of the business plan with his childhood friend. The applicant claimed that he transferred the equivalent of AUD $40,000 to his friend, including $20,000 of his savings from Australia. He said that the transfers were from his wife to his childhood friend in the form of cash and bank transfers. The applicant has not provided any evidence about the bank transfers to his friend from his wife, or from the applicant’s Australian bank account to his wife. I acknowledge that the transfers would have been made over eight years ago, and it may be difficult to obtain records through regular online banking (at least for Australian banks) however, it is surprising given the significant amount of money which was given to his friend that there is no documentary evidence in support of the claim. I have considered that he has said that it was a friend he trusted with his money, however the applicant has been able to provide documentary evidence to support other aspects of his claims, such as his flight bookings to and from Pakistan in 2017 and emails about his intention to leave the country permanently in 2017. He appears to be a person who maintains records about his life, so it is surprising there is no available records about his transactions with his friend. While he said that his business plan was to source [products] which had been [damaged] in [Country 1], he was unable to say where he would source the [products] from as he had to stop because his friend took his money. He said that his friend had told him the business was ready, therefore again it is surprising that he was not aware of where he would source the [products] from. In addition, if the friend had a plan to steal the applicant’s money, it is not apparent why he would tell the applicant the business was ready, which would lead to the applicant returning to Pakistan, and attempting to recover his money. I am also not satisfied that his friend, who already had a successful [business], would want to go into business with the applicant and would require the applicant’s business knowledge and money to acquire equipment. Given these concerns, I do not accept that he had a business plan to import [products] in Pakistan with his friend or that he transferred the equivalent of AUD $40,000 to his friend. As I do not accept that the applicant had business dealings with his friend, that he had transferred AUD $40,000 to his friend or that he informed his friend that he had converted to the Shia sect, I do not accept that his friend would make blasphemy accusations or inform people that he had converted to the Shia sect.
The applicant has provided an FIR in respect of the incident he claims took place, photos of his injury and a medical report. I note that the FIR is based on the applicant’s self-report to the police. Based on the photographs provided, I accept that he sustained injuries to his nose and arm, and this may have occurred in Pakistan in May 2017. However, given I am not satisfied that the applicant had any business dealings with his friend or that his friend had informed anyone about his conversion, I do not accept that the injuries were sustained as claimed by the applicant. That is, I do not accept that a group of people were informed about the applicant’s conversion by his friend and that they stopped his car and threatened him with a gun. He has also claimed that suspicious people came to his parents’ house and were asking about him, and for this reason he didn’t return to his parents’ home after the incident. As I do not accept that his friend told anyone about the conversion, I do not accept that there was a group of people around his parents’ house looking for the applicant because of his conversion.
Despite my findings, I accept that the applicant was injured, and he has attributed it to his conversion to Shia Islam. The applicant’s psychologist has diagnosed him with PTSD, and the basis for the diagnosis originates from his experiences in Pakistan. Based on this diagnosis and the photographs of the injury, I accept that the applicant was injured in Pakistan in May 2017.
The applicant returned to Pakistan in December 2021. His voluntary return and stay in Pakistan for almost six months raises significant concerns for me about his claims to fear harm in Pakistan. While I acknowledge that the applicant missed his family, has raised that his wife had poor mental health and that he had poor mental health at the time, he claims to have fled the country in 2017 because he feared harm from Sunni extremists and he has claimed that his wife had to move away from his parents and her parents in 2020 to avoid problems with their families. It is significant therefore that, despite this risk, the applicant would elect to return to Pakistan and not instead explore opportunities to meet his wife in a third country, or wait to have surgery in Australia. I acknowledge that around the time, late 2021 and early 2022, there were Covid restrictions in place, but the applicant does not appear to have actively explored the possibility of going to a third country. His stated reason for returning to Pakistan was to have surgery which required a minimum six-month recovery (according to his statement in support of his Bridging visa B application), however it wasn’t until mid-March (some two months after his arrival and therefore with four months remaining on his visa to enable him to return to Australia) that he got an MRI in preparation for surgery. If he had gone ahead with the surgery at that time, he would not have completed his recovery before he was required to return to Australia. He also informed the Department about possible surgery options in Karachi, which is much further away from his hometown than Islamabad; however, he elected to stay in Islamabad, where his wife had been residing and where the level of risk would therefore appear to be greater because it is closer to his hometown and also because it was known that his wife was in Islamabad and so therefore it would be more likely that extremists or the community might try to find them there. While the applicant acknowledged that he made a mistake by returning, that he was nervous when he was there and his wife told him he could return to Australia, he elected to remain there for almost the maximum allowed time on his Bridging visa B. I accept his reasons for not leaving after his wife’s miscarriage, however this occurred over two and a half months after his arrival. If he was particularly concerned for his safety, he had the opportunity to depart in those earlier months of his stay. Having regard to these concerns about the applicant’s decision to return and remain in Islamabad, I have significant doubts about his claimed level of harm from extremists and his extended family in Pakistan.

I accept that his wife had a miscarriage in March 2022 based on the medical evidence provided. However, I have significant doubts about the applicant’s claims that his wife informed a friend, who then informed his wife’s family, and that they needed to change accommodation to avoid harm. The applicant has claimed that he and his wife have faced harm and lived under threat of harm since May 2017, and his wife has had to move on a number of occasions because of problems with their families. While the applicant’s wife may have wanted to confide in a friend for support and may have been in distress, it is surprising that, after living with the prospect of threats because of her husband for such a long period of time, she would reveal to a friend that she was pregnant and had a miscarriage, and that the friend, who may be aware of the applicant’s wife’s difficulties with her family, would then inform the applicant wife’s family.
The applicant was not harmed from the time his wife’s family became aware of his presence in the country in March 2022 until his departure in June 2022. I have considered the applicant’s claim that this is because he used his Australian ID rather than Pakistani ID to rent the property and obtain a SIM card. However, it is not clear to me why, if extremists had the ability to locate someone using a Pakistani ID, they wouldn’t be able to similarly locate him because he had registered using his own name using an Australian ID. I accept that the Pakistani ID may have additional features, but the applicant has used an identification method in his own name, and it could be expected that an Australian ID with the applicant’s name would be identifiable as it would be unique in the systems and the extremists and/or the extended family would be aware that it would be possible for him to use an Australian ID.
I have concerns about the applicant’s claim to have remained at home and to not have spent time outside when in Pakistan. He would have gone to the medical clinic to attend medical appointments, which would have required him to be outside in public. In addition, he appears to have told his psychologist that he met his parents for 15 minutes before leaving the country (as recorded in the first report), although it is not clear to me why the second report says he did not meet his parents. While I acknowledge poor mental health may impact upon a person’s ability to recall details during his sessions, I do not accept that it would prompt him to say that he had met his parents when he had not. The reports appear to have been based on notes taken during the sessions.
I find that the applicant was able to live in Islamabad for almost six months and that he did not come to harm from his relatives or any extremists. I do not accept that he had to move to avoid harm from his wife’s family or extremists. Accepting that his wife’s parents and/or extremists were aware of his presence in the country (as he has claimed), they did not locate him and he was not harmed. I do not accept this is because he did not use his Pakistani ID to rent the property, but because they were not interested in harming him in Islamabad.
Islamabad is approximately 130 kilometres from his hometown and his wife had been living in Islamabad. Therefore, people in Islamabad who knew his wife may have asked questions of his wife, and it may have come to light that the applicant had returned. I acknowledge he has claimed he stayed in a different property from where his wife was living, however, the risk remains given he went to the same city where she was living. He could have elected to go to Karachi and his wife could have joined him there, which is a significant distance from his hometown and away from where his wife had been residing, so there would have been a reduced chance of people in the community recognising her. I find that the applicant has exaggerated his level of risk in Pakistan, and that if he perceived there to be a risk in Islamabad, he would not have gone there in 2021 and remained there for almost six months.
I am also not satisfied that any of his relatives want to kidnap his daughters, and am not satisfied that his daughter is not attending school because of a fear of harm. His wife and daughter have lived in Islamabad since 2020 (and his second daughter has lived there since her birth) and they have not come to any harm. While I acknowledge that it may be easier to abduct a child from school than from the home, if the extended family were motivated to take the children, I find that they would be able to locate the rented family home in Islamabad where the applicant’s wife and daughters have been living and take the children, but this has not occurred.
Despite my findings, having regard to the country information about the animosity between Shias and Sunnis, I accept that, as a Shia convert, the applicant faces a real chance of serious harm in his hometown from his relatives who may be Sunni extremists or other extremists in the community who are related to the applicant’s family and aware that he converted from the Sunni sect to the Shia sect. I have made this finding based on the possibility that he was attacked in May 2017 because of his Shia faith, and the witness evidence that when he returned to the applicant’s hometown, he was asked about the applicant and whether the applicant had converted to Shia.
I do not accept that the real chance of serious harm from relatives and people in his hometown extends beyond his hometown. As I have found above, he was able to reside in Islamabad for almost six months without being harmed. I acknowledge this was a temporary period and the applicant claims he spent time in hiding. However, despite the claim that his wife’s relatives became aware he had returned during his stay, he was not harmed. Further, his wife has resided in Islamabad since 2020 and has not been harmed, despite the claim of threats that her family has tried to pressure her to leave the applicant and that they may take the applicant’s daughter. Accordingly, I do not accept that any of his relatives, extended family or community members from his hometown are motivated to harm him outside of his hometown.
Outside of his hometown, the applicant would be identified as a Shia man if he disclosed his faith to others. There are reported to be significant Shia communities in large cities, for example Islamabad and Karachi. Country information, referred to above, indicates that Shia in Pakistan face a moderate risk of societal discrimination in the form of anti-Shia protests and community violence. I acknowledge there have been attacks on Shia in the past in Pakistan and there remains the risk of sectarian violence. However, the situation is reported to have improved. I have considered that he has been diagnosed with mental health conditions, but despite these conditions he has maintained employment in Australia. The applicant appears to be a resourceful man who has worked as [an occupation 3] at [workplace], in the [work] sector, as [an occupation 1] and most recently as [an occupation 2]. There is no indication that he would be denied employment on the basis of his faith, or that he would be unable to work. While I acknowledge there are difficulties for Shia in Pakistan, I do not accept that, in the applicant’s case, the challenges he would face would amount to serious or significant harm. He would be able to reside within a Shia community if he chooses, in a large city such as Karachi or Islamabad, and obtain employment there. Accordingly, I find the chance that he would be targeted on the basis of his Shia faith to be less than a real chance outside his hometown. I do not accept that, outside of his hometown, he faces a real chance of serious harm, or a real risk of significant harm, on the basis of being a Shia, or a convert from Sunni to Shia.
I have also considered whether he faces a real chance or real risk of harm in Pakistan on the basis of his mental health, and the availability of treatment for his mental health. The overall standard of healthcare in Pakistan is reported to be low and mental health services in Pakistan are reported to be difficult to obtain.
For the purpose of the refugee criterion, if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). There is nothing to indicate that the applicant would be denied treatment for his mental health for any of these reasons.
In terms of the complementary protection criterion, ‘significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. In relation to the availability of health care, there is no suggestion that the applicant would be arbitrarily deprived of his life, subjected to the death penalty or tortured.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. I do not accept that there is an act or omission being intentionally inflicted upon the applicant, in respect of the availability of treatment for his mental health, which is intended to cause or bring about pain or suffering, or extreme humiliation.
While I accept it may be difficult for the applicant to obtain mental health treatment, this difficulty does not give rise to a real chance of serious harm or real risk of significant harm, for the reasons outlined above. The situation is because of limited resources in Pakistan, rather than a targeting of the applicant. I note that the applicant and his wife appear to have obtained health care when required (in relation to his back surgery and his wife’s miscarriage and pregnancy).
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
Accordingly, while I accept that the applicant faces a real chance of serious harm in his hometown from his extended family and the community, I do not accept that the real chance of persecution extends beyond his hometown, and therefore it does not relate to all areas of Pakistan.
Complementary protection - Relocation
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). Given I have found the applicant faces a real chance of harm in his hometown, I find that he also faces a real risk of harm in the same area.
‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. I find that the harm the applicant faces amounts to significant harm, in the form of being harmed by relatives or community within his hometown. This treatment amounts to him being subjected to cruel or inhuman treatment or punishment.

100. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. I have drawn guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
101. Internal migration in Pakistan is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location.[15] It is therefore possible for the applicant to relocate within Pakistan.
102. I have to consider whether relocation is reasonable, in the sense of practicable, for the applicant having regard to his particular circumstances. It is submitted that it would not be reasonable for the applicant to relocate to a place outside his hometown because of his mental health conditions, backpain, and the cost of living. The applicant has claimed that living in Islamabad is safe for a short-period, and if he doesn’t have to submit any paperwork which would lead to his relatives or anyone in his community locating him, but if he had to stay there for a long time, and he needed money, it would not be possible to relocate there. He said he wants a basic life, but the cost of living in Islamabad means it is not possible. I suggested that if he wanted to live or be close to Islamabad, there was the possibility of moving to Rawalpindi, which is a neighbouring city and cheaper city. He said that Rawalpindi is not safe, whereas Islamabad is secure because diplomats and businessmen live there so there is security. As noted above, I have found that the real risk of harm is confined to his hometown.
103. The applicant is a resourceful man who has skills in [job task], the [work] industry, and worked as [an occupation 2] and as [an occupation 1]. His backpain may impede his ability to work in labour intensive roles, however, he has previously considered surgery and acknowledged that he needs surgery. He has been able to continue working in Australia, despite his backpain and mental health conditions, and has paid for his wife’s accommodation in Islamabad. In Pakistan, he would have the support of his wife and two daughters, which I find would assist with his mental health. I find that if he returned to Pakistan, he would be able to relocate to a city such as Islamabad, Rawalpindi or Karachi, where there is a significant Shia population, find employment and support himself and his family. He has provided details about the cost of living in Islamabad, and I accept that it is expensive relative to other parts of Pakistan. It would be open to the applicant to find cheaper accommodation within Islamabad (which may be smaller than what is available elsewhere in Pakistan) or live in Rawalpindi and work in Islamabad.
104. I have considered his diagnosis of PTSD and the psychologist’s report. I do not accept that this would prevent him from working or that it would make it unreasonable for him to relocate. He has had five sessions with his psychologist since June 2024 and has learnt techniques to assist him in his recovery. If he were to relocate to Islamabad, he would have the support of his wife and I note that he considers it to be a safer location because of security in the city. It is also away from his hometown and not associated with the memories of the claimed attack in 2017. In respect of Karachi, it is a significant distance from his hometown and therefore may allow the applicant to feel more secure as it may also not be associated with the memories of the claimed attack in 2017. I do not accept that the applicant’s PTSD would worsen if he relocated to either location such that it would make it unreasonable for him to relocate. It would also be open to the applicant to seek treatment online or use online resources to continue his treatment.
105. I have considered the possibility of attacks on Shia in Pakistan, and whether relocating to a large city with a significant Shia population, would be unreasonable on this basis. While it may be at times uncomfortable to consider past attacks on Shia, the situation for Shias is reported to have improved. The security situation overall (not specific to Shia) is reported to have declined, however, I do not accept that this would make it unreasonable for the applicant to relocate within Pakistan to a large city. He may also choose to reside in an area with a large Shia population which may be a protective factor.
106. I have considered the applicant’s situation cumulatively, including his mental health, past attack on him in his hometown, and as a Shia convert, and find that it would be reasonable, in the sense of practicable, for him to relocate to a large urban city in Pakistan where he would be able to practise his religion and support himself and his family. His wife has already relocated to Islamabad, and I find that if he relocated to Islamabad, his wife would not have to relocate again. Alternatively, if they relocated to Karachi or elsewhere, given his wife was able to relocate previously to Islamabad and live independently of her husband, she would be able to relocate again (this time, with her husband).
107. As I have found it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm (that is, outside his hometown), there is taken to not be a real risk that the applicant will suffer significant harm: s 36(2B) of the Act.
Conclusion
108. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
109. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

[15] DFAT Report, para 5.23.

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Ministerial intervention

112. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant is [an occupation 2] and has worked in this role since 2022. He has resided in Australia for approximately 14 years and has become accustomed to life in Australia, and he has led a liberal, safe and protected life. It is submitted that the applicant’s level of integration into the Australian community is a substantial one, invoking s 417,
113. I have considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but have decided not to refer the matter. I note that the applicant can still make a request directly to the Minister.
DECISION
114. The Tribunal affirms the decision not to grant the applicant a protection visa.
Bryn Butler
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.
…

[2024] AATA 4453

4 October 2024

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