1915900 (Refugee)

1915900 (Refugee) [2024] AATA 2060 (1 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Victoria Lenton
Ms Radhika Reddy (MARN: 0854275) until 27/08/2023

CASE NUMBER:  1915900
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Ann Duffield
DATE:1 March 2024
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas

Statement made on 01 March 2024 at 2:47pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – previous application refused and Federal Court appeal withdrawn – religion – Shi’a Muslim cleric, poet and event organiser – fear of harm by Sunni extremists – threatened and attacked – in-person and online activities – travel to third country on home country passports not re-availment of state protection – extensive documentation, supporting statements and submissions – few verifiable activities and very small online profile – many people with higher profiles still living in home country – attacks, if they happened, not targeted but random – country information – serious physical health condition and extensive treatment – wife injured and not working – oldest child now permanent resident and married to Australian citizen, second child’s relationship with citizen and youngest child’s congenital disability – remote prospects of finding accommodation and employment – referred for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Pakistan applied for the visas on 11 August 2017. The delegate refused to grant the visas on the basis that the applicant was not a person to whom Australia owed protection obligations. The delegate further found that the applicant re-availed himself of the protection of Pakistan because he travelled to a third country on his Pakistani passport.
The applicant has sought and received five postponements of scheduled hearings because he is unwell and has been undergoing chemotherapy and other medical treatments for a serious condition. The applicant was granted a six-month adjournment in February 2023. A further hearing was scheduled for 3 August 2023. The applicant through his adviser sought a further six-month adjournment. The Tribunal requested further medical information setting out why the applicant, despite his illness, could not attend a Tribunal hearing. The applicant responded with a number of documents, including a schedule of appointments at various hospitals and clinics, copies of prescriptions, a report from the Neurology clinic at [Hospital] dated 19 June 2023 (setting out his condition), a patient health summary and a letter from his GP dated 12 July 2023 stating that “(the applicant) should refrain from engaging in any work-related or stressful activities or embarking on travel to fully recuperate from the cancer and the accompanying neuropathic damage. Over the next 6 months (the doctor) will continue to monitor (the applicant) who will also continue treatment for the neuropathic damage to his hands and feet….”
The Tribunal wrote again to the applicant through his representative observing that the applicant’s medical reports did not indicate that he was incapable of attending a Tribunal hearing and sought further information. The Tribunal received a further medical certificate from the applicant’s doctor dated 20 July 2023 stating that “(the applicant) is suffering from a serious medical condition. He has regular appointments with his specialists. In addition, I have been seeing him regularly. In my opinion he is not fit to give oral evidence, and I do not believe that he will be fit to do so in the next six months”.
The Tribunal sought a submission from the applicant on his application including a submission that dealt specifically with the question of re-availment. The applicant provided a submission which the Tribunal received on 3 August 2023. It is discussed where relevant in the findings and reasons below.
The Tribunal formed a view that the medical certificate provided by the applicant’s doctor was insufficiently detailed and it did not specifically address the reasons why the applicant was not able to give oral evidence either in person or during a video hearing. Nor has the applicant’s doctor, or other relevant authority, indicated that the applicant is medically incompetent or otherwise unable to act for himself. As such the applicant was again invited to attend a hearing scheduled for 5 October 2023 which he attended.
Regrettably this hearing had to be adjourned as the Tribunal received more than 300 pages in submissions from the applicant through his representative one hour prior to the scheduled hearing. The Time was utilised as a directions hearing and the Tribunal sought from the applicant submissions addressing particular issues which were received on 4 December 2023.
The hearing was rescheduled to 6 December 2023.
The applicants appeared before the Tribunal on 6 December to give evidence and present arguments. The Tribunal also received oral evidence from several of his adult children and their respective partners and his wife. That evidence is summarised below.
The applicants were represented in relation to the review and the representative also attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicants are citizens of Pakistan and first arrived in Australia on a tourist visa in April 2013. There is no evidence before the Tribunal that the applicant is not who he claims to be or that there are any concerns about the identity of any of the applicants. The Tribunal has proceeded on the basis that Pakistan is the receiving country.
The applicants applied for protection in July 2013. That application was refused by the department in April 2014 and affirmed by the RRT in June 2015. The applicant lost the appeal at the circuit court and lodged an appeal with the Full Federal court.
The applicant departed Australia on two separate occasions in April 2016 and November 2016 retuning [in] November 2016. On 25 July 2017 the applicant withdrew his appeal to the Full Federal Court.
The applicant lodged a second application for a protection visa on 14 August 2017. It is that application subject to this review.
The application originally included the applicant, [the second applicant], daughter [Ms A] and sons [the third applicant] ([Age]) and [the fourth applicant] ([Age]). [Ms A] was withdrawn from the application on 23 October 2023 as she now holds a subclass 801 visa.
Delegate’s decision on the applicant’s re-availment of the protection of Pakistan
The delegate refused the application on 28 May 2019, because they were not satisfied that the applicant was a person to whom Australia owed protection obligations.
The delegate also found that the applicant re-availed himself of the protection of Pakistan because he travelled internationally on a Pakistani passport. The delegate argued that his and his wife’s travel to [Country 1] in 2016 implied that he was not genuinely fearful of returning to Pakistan since unforeseen circumstances may have required his removal to Pakistan.
Re-availment of the protection of Pakistan
The Department has made a finding that because the applicants travelled to [Country 1] on their Pakistani passports, the applicants have effectively ‘availed’ themselves of the protection of their country of nationality. The delegate argued that this was so because should any foreign country refuse entry to or eject the applicants from their territory, the applicants would be returned to Pakistan.
The term “re-availment” is not codified in Australian law but exists in reference to circumstances in which a person already granted refugee status may have that status revoked by virtue of the cessation clause in article 1C(1) of the 1951 Refugee Convention. That clause requires a person to have voluntarily re-availed himself of the protection of the country of his nationality and requires contact with the authorities. There is no evidence that the applicant made any approach to the authorities of Pakistan during his travels. He and his wife travelled on existing passports.
The cessation clauses set out the only situations in which refugee status properly and legitimately granted comes to an end. This means that once an individual is determined to be a refugee, his/her status is maintained unless he/she falls within the terms of one of the cessation clauses. It’s difficult to see how the applicant, in the current case, can be considered under these provisions as his status has not yet been determined.
In the circumstances of the current case, the Department seems to have made a finding that the applicants’ travels outside Australia on their Pakistani passports is indicative of the applicants not having a subjective ‘fear’ of returning to Pakistan, and as a result, they no longer satisfy the definition of ‘refugee’ under s 5H(1)(a) in Australian law.
The Department has relied on the ‘possibility’ of being removed from [Country 1] to Pakistan to make a positive finding that the applicants have re-availed themselves of Pakistan’s protection. However, these circumstances could also happen in Australia considering the applicants’ refugee status has not yet been finalised.
In the Tribunal’s view, the action of travelling overseas on their Pakistani passports is not indicative of a lack of fear at the time of departure, nor does it constitute a positive act of re-availment of the protection of Pakistan and the applicant is not excluded for consideration of his claims.
Disclosure Certificate
There is a disclosure certificate protecting certain information on the department’s file from been provided to the applicant. The matters were raised with him in the context of the delegate’s as well as the previous Tribunal’s consideration of his claims and were given no weight. The Tribunal equally does not consider any of the information protected to be of any probative weight.
Evidence before the Tribunal
The Tribunal has before it a copy of the department’s file and the delegate’s decision. It also has had regard to the decision of a differently constituted Tribunal that considered the applicant’s claims in 2015.
The applicant has also provided the Tribunal with a significant number of documents, statements, statutory declarations, country information and reports on Pakistan from the UK, Australia and international organisations, contemporaneous media and other accounts of events in Pakistan, health reports for the applicant and his son, education reports of the children, personal statements from family members, friends and religious associates, extensive submissions from his previous and current representatives, human rights reports, photographs and references to social media links. This material is referred to where relevant in the findings and reasons below.
The applicant also provided a substantial submission on 23 February 2024 in response to concerns put to him by the Tribunal in a s.424A letter after the hearing. That information is referred to where relevant in the findings and reasons below.
Protection claims
The applicant is the only member of the family unit making protection claims. The family members are reliant upon his claims.
The applicant’s claims have remained consistent over both protection visa applications and are summarised as follows from his multiple submissions to this and the previous Tribunal over many years.
The applicant claims that he is a well-known cleric and poet who grew up in a strongly Shia neighbourhood and was heavily involved in religious gatherings and organising religious and other events.
He claims he began writing religious poetry from a young age and started reciting religious poetry at religious events. All his writings are related to his strong Shi’a beliefs, and he praises Imam Ali as the rightful successor of Prophet Muhammad.
Because his poetry has been publicised (but not formally published) and he has recited at various events he has become well known and a target of Sunni’s and others who wish to harm him.
He read at his own Imambargah as well as other religious gatherings in an around Karachi and became very well known. He states that he presents his poetry at his own and other mosques, private and public events about 30-35 times a year.
He began to get involved in organising events himself. He organised a ceremony at his Imambargah which was attended by approximately 10,000 people and to which high-profile preachers had been invited. He became known across Pakistan as a successful event manager and worldwide because that ceremony was broadcast on the internet. As a result, he came to the attention of Sunni extremists.
He is related to and closely associated with his wife’s father [Mr B] who is a prominent Shi’a, and this association makes him vulnerable to attacks by Sunni extremists. [Mr A] died in April 2003.
He had been sent threatening notes and phone calls by radical extremists from around September 2012 because of his prominence in the Shia’ community. In January 2013 he was followed by some men, but he managed to escape.
A close associate was shot and killed [in] March 2013, and he is fearful that he will also be killed. A bomb exploded near his home that killed 48 people. [In] April a security committee at the Imambargah told him to seek out security for himself and his family as they were concerned that extremists had targeted him.
He had to close his business and began working from home and taking his children to school via different routes. On 28 March he lodged a visitor visa application to come to Australia.
The applicant claims he was assaulted [in] April 2013 after he left an Imambargah where he had gone for prayers. His attackers called him an infidel and told him to stop his activities. He did not approach the police about his because he was afraid that his attackers would find him. When he had gone to the police in the past, they didn’t do anything to help him. He was subject to a second assault in May 2013.
The applicant went to live with his brother. He had to restrict his movements, hardly leaving the house and asking his brother to help with errands. He lived in fear.
He claims that the security committee of his Imambargah informed him [in] April 2013, that he was on a list of people to be killed by extremists.
The applicant claims he will be subject to a real chance of persecutory harm on return to Pakistan because of his religion. He believes that he will be targeted by Lashkar e Jhangvi, an anti-Shia Muslim terrorist and militant group based in Afghanistan, but which operates in Pakistan.
The applicant claims that he maintains a strong physical and digital presence in the community and online and is therefore well known and could not relocate to another part of the country. The authorities are unable to protect him.
The Tribunal hearing
The Tribunal noted that the applicant has, in the past, made claims and provided psychologists reports indicating that his mental state leads him to make errors and forget details of events due to a trauma response. Neither the applicant, nor his representative have made similar claims or indicated to the Tribunal that the applicant was impaired in any way such that he could not give evidence on this occasion. The Tribunal was mindful however that the applicant has suffered some serious health issues, including receiving chemotherapy for cancer and told him that he should let the Tribunal know if he was in any kind of distress at any time or if he wanted to adjourn proceedings. The applicant indicated that he would proceed. He was currently in remission and had returned to work.
The Tribunal put to the applicant that the previous Tribunal had found his evidence in relation to the alleged attacks against him to be inconsistent and lacking in credibility. The applicant told the Tribunal that he had sought to address those inconsistencies on many occasions and suggested that the inconsistencies were minor and easily explained.

The Tribunal noted that it has seen those submissions and asked if there was anything else he wanted to say or add in relation to those matters. The applicant said that he was stressed and depressed at the time. He was confused and when the interview happened the last time, he got both incidents confused and apologised.
The Tribunal asked the applicant if he had been subject to any other physical assaults or incidents prior to his departure for Australia which prompted him to leave. He told the Tribunal that there were no others except what he had already submitted but that he was also threatened over the phone. He told the Tribunal that he took a threatening letter that he found pinned to his door to the police, but they didn’t do anything and took no action against his complaints regarding obnoxious phone calls. Asked what the phone calls were about he said that these people told him to stop doing his poetry and managing events or they would harm his family.
When pressed by the Tribunal about the origin of these calls and letters the applicant said that they were people who oppose Shi’a, and they are against his beliefs and against his poetry. He told the Tribunal he knew they were Islamists because of the kind of language they used such as calling him and his family kaffir or non-believers. He said an ordinary person would not try to stop him from going to the mosque and if people didn’t like him, they would just not talk to him. He surmised that people who were using that kind of language and threatening himself and his family were from a major Islamist terrorist organisation.
The Tribunal asked the applicant how he knew these people were from a terrorist organisation and he claimed that the numbers used to call him were registered under fake names. Asked how he came to know this the applicant said that he asked the telecommunication company about these numbers, and they told him that they were registered under a fake ID however mostly the calls he received were from no caller ID. He said that on one occasion there was a number that he could investigate, and they called themselves soldiers of Allah.
The Tribunal pressed the applicant for more details about these threats and he said that the calls started in around September 2012, and he received them two to three times a week. He only received one written threat. He told the Tribunal that it was easy to get people’s phone numbers in Karachi and there was no point him changing his number because they could get the new one. He did not go on to explain how this was possible.
The Tribunal put to the applicant that he had provided it with a list of important clerics and other personalities in the Shia community who appeared to be still living in Pakistan, including Dr Rehan Azmi and others. The Tribunal put to him that these people appeared to be very prominent public speakers (Dr Azmi, for example has written 7 books and over 30,000 religious songs and is responsible for holding a famous poetry event in Karachi every year). The Tribunal put to him that these prominent poets and speakers nevertheless remained living in Pakistan and even Karachi but were unharmed. The Tribunal asked him why he believed he would be harmed when others with much higher profiles were not. The Tribunal asked if his poetry was controversial or political, or why it would otherwise attract the adverse interest of Sunni extremists.
The applicant said that his poetry is not political and does not have any extreme or radical views. He said his poetry was all about prophet Mohammed and his progeny and all related to Shi’a Islam. The Tribunal put to him that these other prominent poets and clerics also wrote and spoke about Shi’a Islam and were still living in Pakistan.
The applicant said that being a poet was not the only reason, he said that he was a well-known event organiser for Islamic festivities. He has provided no evidence of this except through supporting statements of friends and associates, including clerics and others.
The Tribunal questioned the applicant about the circumstances and contexts in which he delivered his poetry and he stated that he delivers them at special religious events, at private homes and celebrations. Asked if his poetry was disseminated in any other way, such as being published, he said that it was not.
The applicant said that he used [a pen name] and this was common practice. He said that in Pakistan it was not done to obtain anonymity as the two names are usually linked.
The Tribunal put to the applicant that it was trying to understand how he could be considered a prominent figure such that people would want to harm him. He said that thousands of people attended the events and would talk about it afterwards. He said that many people made audio recordings and they were distributed. He said he was very well known. Asked if his events were publicised in any way, he said mostly in the print media and with banners and posters. He was unable to provide the Tribunal with copies of any promotional material when asked.
The Tribunal put to the applicant that it had performed an extensive social media search and found that his channel had four followers and a handful of videos in Australia and asked if he had an electronic presence in Pakistan as the Tribunal was unable to locate him. The applicant provided the Tribunal with a list of social media links for sites in Australia which it has accessed.
The applicant said that if he returned to Pakistan, he would practice the same things as he did before and he will face the same persecution he experienced before he left. The Tribunal put to the applicant that he had told it that he was not a controversial or political poet and was finding it difficult to see why he would be targeted as it did not appear that he had a nationwide profile, or any kind of profile. The applicant asked if he could respond in writing and the Tribunal agreed.
The Tribunal asked the applicant about the events he had been asked to organise for his Imambargah. He was a volunteer as it was not a paid position. He organised events with singers and orators and managed the funding of the event and marketing as well as the security. Asked how many events he organised he said that it was a large number in accordance with the Shia calendar.
Asked how he supported his family if the job was unpaid, the applicant said he had [a] business in Karachi which he wound up prior to travelling to Australia. He has had work from time to time in Australia in the same field. He is still undergoing cancer treatment and his wife had a workplace accident and is receiving workers compensation. She stays at home and helps him. He is currently in remission but continues to take neuropathic medicines for a neural disorder. He son also continues to live with him as he has a congenital disorder. His daughter is married to an Australian citizen.
The applicant told the Tribunal that there is a good cancer treatment facility in Karachi, but he did not think it would be possible to obtain assistance with the neuropathy treatment.
The applicant said that he did not know of anywhere else he could relocate to as he would continue to conduct himself as he did in the past. The authorities can’t protect him. The Tribunal asked the applicant to provide it with a written submission on why he can’t relocate or obtain state protection.
Country information

69. A New Era of Sectarian Violence in Pakistan | Crisis Group
70. Pakistan-Shia Muslims-CPIN-v3.0(July 2021) (publishing.service.gov.uk)

Although there have been sporadic targeted attacks against Shia Muslims, relative to the size of the Shia population in Pakistan, they are, in general, unlikely to be subject to treatment or discrimination by non-state actors that is sufficiently serious by its nature or repetition to amount to persecution..1 Where the person has a well-founded fear of persecution from the state they will not, in general, be able to obtain protection from the authorities. 2.5.2 Where the person has a well-founded fear of persecution from non-state actors, including ‘rogue’ state actors, decision makers must assess whether the state can provide effective protection. 2.5.3 The state has established a functioning criminal justice system that is capable of detecting, prosecuting and punishing acts of persecution from non-state actors. Police efficacy varies by province as do the challenges faced by each force (see the Country Policy and Information Note on Pakistan: Actors of protection). 2.5.4 In regard to Shia Muslims, the state takes action to curtail extremist activities, such as increased security force presence and visibility, restrictions on clerics known for exacerbating sectarian tensions, suspension of cellular services, and heightened security monitoring, particularly in the run up to and during the month of Muharram. Federal and provincial authorities increase security during Shia religious commemorations, reducing the risk of attack. Military escorts are provided for Shia pilgrims travelling along high-risk roads to and from Iran although they are reported to be infrequent (see Police and judicial protection). Page 10 of 41 2.5.5 In general, the state is both willing and able to offer effective protection to Shia Muslims. A person’s reluctance to seek protection does not necessarily mean that effective protection is not available. Decision makers must consider each case on its facts. The onus is on the person to demonstrate why they would not be able to seek and obtain state protection.
RELIGIONDFAT Country Information Report Pakistan (25 January 2022) - DFAT supplied version.docx (sharepoint.com)3.28 According to the 2017 national census, Muslims comprise 96.47 per cent of the population. Of this number, an estimated 80-90 per cent are Sunnis and 10-20 per cent are Shi’a. Hindus comprise 1.73 per cent of the population, Christians 1.27 per cent, Ahmadis 0.09 per cent (counted separately from Muslims in official figures), and others (including Sikhs, Parsis, Baha’i and Buddhists) 0.32 per cent. Minority groups dispute these figures, saying they undercount minorities.
3.29 Article 20 of the Constitution provides ‘subject to law, public order, and morality, —(a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’. Article 36 guarantees ‘the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services’. The Constitution establishes Islam as the state religion. Articles 41(2) and 91(3) require that the president and prime minister be Muslim. Article 260 of the Constitution defines the term ‘Muslim’, and explicitly excludes from that definition several groups, including Ahmadis. The government sets a 5 per cent quota for hiring religious minorities (excluding Shi’a and Ahmadis) at the federal and provincial levels of government, but these targets are rarely met.
3.30 In 1979, President Zia ul-Haq introduced The Offence of Zina (Enforcement of Hudood) Ordinance, 1979, also known as the ‘Hudood Ordinances’, prohibiting consumption of alcohol, sex outside marriage and pornography. Non-Muslims are exempt from the alcohol ban; the other bans apply to Muslims and non-Muslims alike.
3.31 Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies (such as the TLP). Shi’a
3.55 Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions. 3.56 Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.
3.57 Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’.
3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. Anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision).
3.59 Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.
3.60 Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS (see Security Situation). These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras, see Hazaras), compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.
3.61 DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a face specific, heightened risks (see Hazaras, Turis, Bangash).
5.1 Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).
5.2 Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
INTERNAL RELOCATION
5.23 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration 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. Single women find it especially difficult to relocate (see Women). For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate, they can be tracked down and killed years later (see Women). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.
Findings and reasons
The Tribunal put to the applicant the country information cited above in paragraphs 69-85, indicating that it appeared to the Tribunal that he would be able to relocate and obtain state protection should he be required to return to Pakistan and further, that Shia Muslims in Pakistan are protected by Pakistan’s constitution and law in the relation to the practice of his religion. His response to that information and other concerns put to him by the Tribunal are contained in his submission received on 23 February 2024. Where relevant, those arguments and information are reflected in the findings and reasons below.
Claims of physical harm in Pakistan prior to departure
The Tribunal accepts that the applicant is Shi’a Muslim and a poet. He has provided numerous testimonies from other Shia poets, and clerics as well as from other Shi’a organisations along with his family and friends.
The Tribunal has viewed some video footage of the applicant reading his poetry to a small group of people at a mosque in [City] in around 2018. He has described his poetry as “’sorrowful”. He has given evidence that it is not controversial or political, but just about Shia beliefs, the Prophet, and His Family. He reads his poetry at events significant in the Shi’a calendar and at private homes. He states that he has organised events where more than 10,000 people have been in attendance. He has not provided any corroborative evidence of the events he has organised. He has not said or provided evidence that any of those events were disrupted or targeted by members of the Sunni community, or indeed anyone else.

The Tribunal accepts that there is significant tension between Sunni and Shi’a Muslim sects at various times in areas of Pakistan, including in Karachi where he lives with his family.
The applicant’s accounts of the two alleged attacks against him have changed over time and this has caused previous decision makers to question his credibility. The Tribunal is relying on his latest account provided in a statutory declaration to the Tribunal on 23 February 2024. The Tribunal notes the differences in the accounts given by the applicant but accepts the applicant’s explanation that the variations do not detract from the actual events.
Having said that, the Tribunal does not accept that even if the assaults occurred (which it is not persuaded occurred), they were for the reasons claimed.
The applicant has said that the assault [in] April 2013 occurred when he left a mosque after evening prayer. He was not at his usual mosque, but one on the way home from the CBD in Karachi. He noticed that he was being followed. It was dark. He found his motorbike where he parked it and states that he lost control of the bike and fell down. Four people came and kicked him, and he lost consciousness. He identifies these people as members of Lashkar e Jhangvi, an anti-Shia group by their clothing. He states that he thinks they were following him because he was a popular poet and on their list of people to target.
The Tribunal notes that this is the first time that the applicant has named the group he alleges is responsible for the attacks and threats against him.
The Tribunal accepts that the applicant is a poet and known in the Shi’a community. However, it is much less clear how he was recognised, allegedly by members of Lashkar e Jhangvi, outside a Mosque which is not his usual place of prayer and in the dark. The applicant has said that he reads his poetry at both public and private events. His work is not publicised widely except by word of mouth and audio recordings. He has not claimed that any of the events were disrupted, targeted, or even attended by Sunni groups or individuals.
The applicant claims that he organised a ceremony at his Imambargah which was attended by approximately 10,000 people and to which high-profile preachers had been invited. He became known across Pakistan as a successful event manager and worldwide because that ceremony was broadcast on the internet. He has provided no corroborative evidence of this event or a link to the broadcast. Nor has he indicated the date upon which this ceremony was held, what it was or where. Given the size of such an event the Tribunal would expect the applicant to be able to provide some corroborative evidence or relevant detail.
The applicant claims that he is well-known, even stating at various times that he is known throughout Pakistan by Shia and Sunni alike. However, he has provided no tangible or credible evidence of this prominence outside some members of the Shi’a community.
The Tribunal accepts that there are some videos of the applicant reading poetry, both in Pakistan and in Australia and that he is known by some prominent Shi’a figures. The Tribunal was unable to locate a highly visible electronic presence. It did locate some videos of him reciting some poetry in [City] on his [Online platform] channel and on [Social media]. One video on [Online platform] has received 6 views and his channel has seven subscribers. He has posted 20 videos that have received 964 views since 2011. He does not appear to have been active beyond 2020 on his own channel.
There are around 50 other videos on the website of [Organisation] where the applicant is reading poetry at small gatherings. The number of viewings of these videos is around 7-20 each from 2014 to 2023. The Tribunal does not have access to any links to Pakistani social media or websites that may contain the applicant reading poetry.
On any measure, this is a very small audience of viewers in Australia over a ten-year period. As mentioned above, the Tribunal has not been provided with any external links to other sites which may indicate an international presence. This presence, does not, in the Tribunal’s mind, indicate that the applicant is well-known or “prominent” and certainly not to the extent that he would be of any adverse interest to anyone for any reason at all, such that they would seek to harm him.

100. The applicant has not claimed that he has been the subject of news articles or other publicity or that his photograph, or image has been prominently displayed such that he would become a recognisable figure, let alone a target for extremists. The applicant did not cease his religious activities after these alleged assaults, and even delivered his poetry at his Imambargah [in] April 2013.
101. The applicant claims that the second alleged assault occurred around [May] 2013 during the day when he returned to the same mosque to collect his wallet. He alleges he was dragged into a lane by three men and kicked and attacked. They threatened to kill him if kept coming to the mosque. He went to the police and made a report, but the police didn’t do anything. The applicant implies that this was a targeted attack however its not clear how his assailants would know that he would be at that particular mosque at that particular time.
102. The Tribunal has considered the police report but gives it little weight. A person can go to police and make a report about anything, but it is not evidence of the assault in and of itself. He has said that nothing came of the report. Equally, he has produced a letter from a doctor at a medical centre dated [April] 2013 stating that the applicant was treated for bruises and an open wound on his lips. The Tribunal does not accept that this is evidence of an assault, specifically it does not accept that this is corroborative evidence of the applicant’s claims to have been assaulted by members of Lashkar e Jhangvi for the reasons claimed, or for any reason at all.
103. Equally, the various statements from friends and family stating that the applicant has been targeted and threatened, rely on the applicant’s account of what happened. The Tribunal notes a letter provided to the Tribunal dated 23 September 2023 from some members of the volunteer community at [Mosque]. These people confirm that the applicant was a popular event manager and because of this and his connections in the local community, he quickly became a target for extremists. However, they do not mention in what way, when and how he was allegedly targeted. None of the statements’ authors appear to have been witnesses to the alleged assaults but notably they do not state that they have been the subject of harm or threats of harm and indeed have expanded the Imambargah. The Tribunal gives this letter little weight as evidence corroborating the applicant’s claims.
104. The applicant had not been doing his poetry readings at the time prior to the alleged assaults outside the mosque. He stated that he had gone to prayers on the first occasion and on the second he went to pick up his wallet. The Tribunal notes that the applicant states he was warned not to return to the mosque. He was not attending a Sunni Mosque so it’s unclear why an anti-Shia militant, or militants, would warn him off. The entire account is unpersuasive, lacking in relevant detail and credible corroborative evidence and appears to be contrived.
105. For the same reasons above the Tribunal does not accept that the applicant, if he was assaulted (and the Tribunal is not persuaded that he was assaulted), was assaulted for the reason claimed.
106. The applicant has claimed that these assaults came some months after he started to receive threatening phone calls and found a threatening note pinned to his front door.
107. The applicant’s account of the threatening phone calls and note is wholly unpersuasive and, in the Tribunal’s mind, wholly contrived. The Tribunal does not accept that the applicant received any threatening phone calls or that a threatening note was pinned to his door. It’s a very easy claim to make because it’s difficult to prove or disprove. It seems unlikely that the applicant, a third-party, could contact a telecommunications provider to obtain the identity of private callers, or even if they could, that the provider would or could know that an identity was “fake”.
108. The applicant has not indicated that he bribed any officials to obtain this information or that it was a time-consuming process. Indeed, it appears to have occurred at the time the applicant was receiving these calls. Nor is it plausible to state, as the applicant unconvincingly has, that had he changed his number that these anti-Shia extremists would be able to obtain it easily. There is no credible evidence to indicate that he was of any interest to them for any reason.
109. The Tribunal has formed a view that even if the attacks occurred (and it is not persuaded that either of them did occur), they were opportunistic and random.
110. The Tribunal is not satisfied, on the basis of the evidence before it, that the applicant was assaulted for the reasons claimed, or for any other reason. The applicant has not been able to persuade the Tribunal that he is of sufficiently high profile that he would have come to the attention of Sunni extremists such that they would seek him out to harm him, or that he was even known to them. The Tribunal is certainly not satisfied that he was and is known across the whole of Pakistan by Sunni and Shia communities.
111. In the Tribunal’s mind, if anti-Shi’a extremists were indeed involved and wanted to kill or significantly harm the applicant, then that is what they would have done. The information on Lashkar e Jhangvi provided to the Tribunal by the applicant states that LEJ seeks to eradicate Shi’a influence in Pakistan and the group has carried out deadly attacks on Shi’a communities, places of worship and leaders, as well as against other religious minorities, especially Hazara. It is primarily active in Punjab, the former FATA, Karachi and Balochistan. The group targets leaders and places of worship purposefully: the applicant is not a leader, and his mosque was not targeted.
112. The LEJ had several opportunities to significantly harm or kill the applicant; they did not. Their alleged attempts, as recounted by the applicant, do not point to an organised, deliberate, systematic or even competent strategy to kill or even harm him. The LEJ is a deadly group that targets and kills Shi’as. Yet, in relation to the applicant, they only pinned a threatening note to the front door of his house and assaulted, but did not kill him, on two occasions. The Tribunal does not find the applicant’s claims to be credible.
113. The applicant has provided an undated copy of a letter purportedly by the head of Security and Surveillance Committee of the Imamgargah, [Mr C]. [Mr C] states that the applicant’s name is on a list of people who are to be targeted and killed by Muslim extremist groups. [Mr C] states that the applicant was advised of this verbally and then the information was confirmed with him through a letter dated [April] 2013. [Mr C] also states that if the applicant returns to Pakistan, they will kill him. The Tribunal does not have a copy of the latter document. [Mr C] does not name the extremist group that has allegedly put the applicant’s name on their list and it is not at all clear why [Mr C], after verbally informing the applicant of the threat, would feel it necessary to provide confirmation in writing. For what purpose?
114. The Tribunal went to the website provided by [Mr C] and notes that the Imambargah of which he is the head of Security is in [City, Country 2]. The relationship between the Imambargah in Karachi and the one in [Country 2] is not clear to the Tribunal. The Tribunal finds the letter from [Mr C] to be unreliable.
115. Be that as it may, as the Tribunal does not accept that the applicant was of adverse, or indeed any interest to Sunni extremists, including the LEJ, or anyone else such that he was targeted for harm, the Tribunal does not accept that the security committee of his Imambargah informed him [in] April 2013, that he was on a list of people to be killed by extremists, and that this was the reason that he and his family departed for Australia.
116. The applicant has provided a list of 11 prominent people who “vouch for the fact that he is in need of protection and should not return to Pakistan”. Again, none of these individuals witnessed the alleged assaults on the applicant. What is of interest, however, is that the individuals named appear to have very high profiles and include heads of organisations, including religious organisations, a Senator, a publisher of [religious songs] and [Mr D], one of the world’s most renowned religious Shia scholars from Pakistan. All but one continues to live and work in Pakistan unharmed. When the Tribunal put to the applicant at the hearing that these men seemed more likely than himself to be the targets of extremists, he said that he was not just a poet but an event organiser.
117. The Tribunal has also considered a letter from [Mr E] dated 2 October 2023. [Mr E] states that he has known the applicant for a long time and that he is a renowned Noha Khwan (poet). [Mr E] states that Shia religious poets are targeted and he himself was the victim of a shooting in January 2023. He states that something as minor as practising your faith and contributing to the community can cost you your life and the more you do it the more you tempt your fate. He states that Shia speakers are seen as contributing to blasphemy. [Mr E] remains living in Karachi despite the attack against him.
118. The Tribunal also accepts that Shi’a clerics and potentially poets may be considered blasphemers. The Tribunal notes the country information in relation to that matter, that 70 per cent of blaspheming accusations are against Shi’a. However, the Country information also indicates that few are ever convicted.
119. The Tribunal does accept that some Shi’a clerics, academics, doctors, and others are targeted by some Muslim extremists and that there are also random acts of sectarian violence in Pakistan even in an improving security situation noted by [Mr E]. However, this does not amount to evidence that the applicant himself has been targeted or would be in the future if he returned to Pakistan.
120. On the evidence before it, the Tribunal is not satisfied that the applicant suffered harm in the past by reason of his religion and associated activities, or for any other convention related reason, or indeed for any reason at all.
Future harm
121. The Tribunal is not satisfied that the applicant is a person of adverse interest to Sunni militant or extremist groups, including the LEJ, such that they sought him out for harm when he lived in Karachi, Pakistan almost 10 years ago. The Tribunal finds the applicant’s claims to lack credibility.
122. At that time, in 2013, the Tribunal accepts that he read Shi’a poetry at religious celebrations up to some 30 times a month. The Tribunal also accepts that he organised some religious celebrations but has not been able to provide probative evidence of that, except by former associates, friends, and family members.
123. There is no credible evidence to support the applicant’s claims that he was or is known across Pakistan for his poetry and event organising such that extremist groups want to harm him or his family. His presence on social media in Australia is negligible and entirely inoffensive. He does not incite people to violence or make political commentary.
124. The applicant was last in Pakistan almost ten years ago. The Tribunal has found that there is no evidence that the applicant suffered persecution or significant harm in the past or was of adverse interest to anyone such that they would seek to harm him, or his family, for any reason.
125. The Tribunal has considered the applicant’s claims of having a well-founded fear of being persecuted in the future.
126. The country information before the Tribunal indicated that the applicant would not face significant harm should he return to Pakistan and that effective state protection was available to him. There are some 24 million Shia Muslims in Pakistan with a sizeable community in Karachi. DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties.
127. The Tribunal notes, in particular, the information in paragraph 72 as follows:
Although there have been sporadic targeted attacks against Shia Muslims, relative to the size of the Shia population in Pakistan, they are, in general, unlikely to be subject to treatment or discrimination by non-state actors that is sufficiently serious by its nature or repetition to amount to persecution.

128. This material was put to the applicant for response and the Tribunal received a submission on that information on 23 February 2024.
129. Notably in that submission, the applicant recounts information provided by the Crisis Group’s report in 2021 which relates to sectarian violence and a sensitive security situation:
Sectarian violence “got worse” in 2021, causing 26 deaths in Balochistan, 20 in Punjab, 7 in Khyber Pakhtunkhwa, 6 in Gilgit-Baltistan, 5 in Sindh and 1 in Islamabad. In 2021 there were four sectarian violence “operations” perpetrated against Shias resulting in 73 casualties including 11 fatalities and 62 injuries. Additionally, there was one “operation” perpetrated against Hazra Shias, resulting in 15 casualties, including 11 fatalities and 4 injuries. (CRSS2022-05-18, 29,30).

130. The applicant submits that the state of Pakistan cannot protect Shia Muslims and that they face persecution no matter where they go to in Pakistan. The applicant submits that “there is no evidence before the Member regarding the availability of a safe location in Pakistan for the applicant, given the conflicting evidence available of the safety of different areas for Shi’a Muslims”. The suggestion from the applicant is that no Shi’a Muslim is safe anywhere in Pakistan, and all are subject to persecution such that he and his family cannot return.
131. It follows that some 26 million Pakistani citizens of the Shi’a Muslim faith have a well-founded fear of persecution and are in need of international protection. This proposition is simply not supported by the evidence.
132. Shi’a Muslims account for 10-20% of Pakistan’s population of 242 million people. Even at the low end that would mean that some 26 million Shi’a Muslims live in Pakistan. Of those 26 million, according to the Crisis Group, some 87 were killed because of sectarian violence in 2021. The deaths of any number of people resulting from their religious beliefs should be rightfully condemned and the Tribunal is not trying to trivialise the impact of sectarian violence on the communities involved.
133. However, in the context of the applicant claiming a well-founded fear of persecution on the basis that he is a Shi’a Muslim who cannot be safe or protected anywhere in Pakistan, measured against the evidence, that proposition can only be considered remote.
134. As the Tribunal has already found that the applicant is of no interest (adverse or otherwise) to any extremist group, by reason of his religion, or religious activity as a poet and event organiser, or indeed for any reason, such that he would be sought out for harm, it follows that the risk of harm to the applicant and his family would only arise from a random or sporadic event, and on the evidence before it, the Tribunal considers that risk to be remote.
135. The Tribunal has not considered relocation as it is not satisfied that the applicant faced harm in the past, or would face harm in the future, for the reasons claimed or for any other reason if he returned to Karachi.

136. Equally, the Tribunal has turned its mind to the question of state protection and notes that where a person has a well-founded fear of persecution from the state (or non-state actors) they will not, in general, be able to obtain protection in Pakistan. However, the Tribunal has found that the applicant does not have a well-founded fear of persecution, for the reasons stated, or for any other reason. It follows that the question of his need for state protection, in the context of this assessment, does not arise.
CONCLUSIONS

The issues in this review are whether there is a real chance that, if the applicant returns to Pakistan, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

138. Taking his claims cumulatively and separately, and considering all the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed by Sunni extremists, the LEJ or anyone else for reasons of his religion and occupation as a religious poet and event organiser, or for any other reason, should he return to Pakistan either now or in the reasonably foreseeable future. The Tribunal is not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).
139. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
140. On the basis of the evidence before it the Tribunal is not satisfied that the applicant been subject to significant harm in the past or that he will be subject to significant harm by reason of his religion, or any other reason, convention-related or otherwise, should he return to Pakistan either now or in the reasonably foreseeable future.
141. There is no evidence before the Tribunal would lead it to form a view that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there is a real risk that the applicant will suffer significant harm for any other reason. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(aa) for a protection visa.
CONCLUSION
142. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. As he does not meet the criteria it follows, therefore, that none of the applicants satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
MINISTERIAL INTERVENTION
143. The Tribunal would strongly support a request from the applicant to the minister to intervene in this case. The applicant and his family have been in Australia for ten years. He has been fighting cancer for several years, and for which he continues to receive intensive and extensive treatment even whilst in remission. Whilst the applicant has said that he believes he can receive care in Karachi its clear that he will not be able to receive appropriate care cost free.
144. The applicant no longer has a home in Pakistan and the likelihood of him being able to find accommodation for an injured wife and disabled child would be difficult. The likelihood of him obtaining paid employment is remote, even if he remains in remission. His wife has also recently been in a workplace accident and is suffering from reduced mobility. His youngest son has a congenital disability and his opportunities in Pakistan would be severely limited.
145. The applicant’ daughter is married to an Australian citizen and is now an Australian permanent resident. His second son is also in a de-facto relationship with an Australian citizen. The negative impact on the entire family, some of whom are Australian citizens would be significant if the applicant were required to return to Pakistan.
DECISION
146. The Tribunal affirms the decision not to grant the applicants protection visas.
Ann Duffield
Senior Member

147. 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 2060

1 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Standing