1917923 (Refugee) - [2024] ARTA 753

1917923 (REFUGEE) [2024] ARTA 753 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative:  Mr Mohammad Ajmal MALIK (MARN: 0105748)
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 1917923

Tribunal:General Member P Millar
Date:10 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 10 December 2024 at 12:33pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – conversion to Shia Islam – love marriage – threats of physical attack – fear of killing – return visits to Pakistan – joint property purchase – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
SZBYR v MIAC (2007) 253 ALR 609
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who the Tribunal finds to be a citizen of Pakistan, applied for the visa on 27 August 2018.[1] The delegate refused to grant the visa on the basis that the applicant's evidence was not credible. The applicant appeared before the Tribunal on 10 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review and the representative appeared at the hearing.
[1] The Tribunal’s finding is based on the applicant’s Pakistan passport which he produced at the hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
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.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 25 January 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he will suffer serious harm in Pakistan because he converted to become a Shia Muslim.[3] The Tribunal holds the following concerns about the applicant's credibility.
Credibility concerns
Withholding his interest in Shi’ite Islam from his second wife
[3] The applicant's evidence to the Department and the Tribunal comprises his protection visa application; his written statement dated 22 August 2018; his evidence at an interview with the delegate for which there is an audio recording in the Department file and to which the Tribunal has listened and his evidence at the Tribunal hearing. For the sake of completeness, the Tribunal records that the Department file contained a pro forma document purporting to be a non-disclosure certificate. The document was not completed nor did it specify that any document was not to be disclosed.
To the Tribunal, the applicant gave the following account on which his protection claims are based. The applicant was a Sunni Muslim from a village in the area of Abbottabad, Khyber Pakhtunkhwa province. He left school around the age of [age] and in approximately 2002 he commenced working as [an occupation 1] for a private company in Islamabad. In August 2003 the applicant married his first wife from whom he has one child, a son aged [age]. This was an arranged marriage and the couple “were not in love”. His first wife lived with him briefly in Islamabad and then lived with his parents.
From June 2010 until December 2010, the applicant worked as [an occupation 1] in [Country 1]. On return to Pakistan the applicant again worked in Islamabad as [an occupation 1]. At that time, he met a woman who became his second wife and who was also a Sunni Muslim. He met her at the home of her aunt whose son was the applicant’s friend. The applicant would go to that home to visit him. On meeting each other the couple fell in love, exchanged telephone numbers and spoke to each other on the phone. The applicant also regularly saw her at the home of her aunt and met her in a park. The applicant liked this woman because she was beautiful, had good character and spoke nicely.
The applicant proposed marriage to her and she accepted his proposal. He told her that he was married with a child, but she did not object to that. Her family was initially opposed to the marriage stating that the applicant came from a different tribe or caste. The applicant did not tell his own family about the relationship because they would object for the same reason. [In] March 2011 the applicant married his second wife at the home of her parents who eventually agreed to the marriage after the applicant had assured them that he could take care of their daughter. This was so even though they were aware that the applicant was already married. The applicant subsequently told his parents about the second marriage and they accepted it.
After their marriage the applicant and his second wife lived in a rented two-bedroom home which was next to the home of his second wife's parents. Before meeting his second wife, in approximately 2009, the applicant met and befriended a man who was a Shia Muslim and with whom the applicant played [sport]. They met in a town, in another area of Pakistan near Rawalpindi, where one of the applicant’s brothers [Brother A] was living and working. Through this friend, the applicant on occasions went to Shia religious processions and a Shia mosque in that area. Initially the applicant thought that Sunni Muslims were “better” and Shias were not good. However, when he saw Shias in processions beating themselves to commemorate the prophet's grandson being killed, he liked their religion.
For the applicant, Shias hurting themselves in those processions was “based on logic”. Before his second marriage in March 2011, when he would go to see his brother [Brother A], there were times when the applicant would go to a Shia mosque twice in one day. By the time he married his second wife he was very interested in Shia Islam. In May 2011, two months after he married his second wife, the applicant converted to become a Shia. In this respect, the applicant was given an affidavit at that time from another Shia stating that the applicant had converted to that sect. There was no ceremony in a mosque for the conversion. Office bearers put his name on a register in the area where the Shia mosque he had attended was located. In June 2011, the applicant left Pakistan and came to Australia for employment as [an occupation 1].
Before leaving Pakistan, at no stage did the applicant tell his second wife about his interest and involvement with Shia Islam nor his conversion. It was not until approximately mid 2012, one year after his arrival in Australia, when he told his second wife for the first time that he had converted to become a Shia. The Tribunal asked the applicant why he told his wife at that time and not earlier. In response, the applicant said that his wife never asked him about it, he took it as normal and did not think that it would be a big issue. He said that normally it was men who went to a mosque and he did not think she would make a fuss about it. He recalled on occasions wearing black clothes generally thought to be the outfit of Shias and his second wife would ask him why he did that. He would tell her that he liked wearing those clothes and she did not make any fuss about it.
He said that in mid 2012 when telling her of his conversion he also said that he saw Shias as better and initially she thought that he was joking. He got “serious to her” and she then told her family who said that Shias are non-believers and what the applicant had done was wrong. This caused the applicant to decide to return to Pakistan in March 2013 and see the family of his second wife. As set out below, the applicant's evidence to the Tribunal was that on this and subsequent journeys back to Pakistan the applicant encountered rejection of his conversion from his second wife and her family, threats of harm and physical attacks.
The Tribunal put to the applicant that it had difficulty accepting his account that he did not tell his second wife about his interest in and eventual conversion to becoming Shia until mid 2012. According to his evidence, by the time he met his second wife, the applicant had been attending Shia ceremonies and a Shia mosque. Further, the applicant said that this second marriage was a “love marriage”, with someone that he freely chose and said that he loved; as opposed to his first marriage with someone he did not choose and with whom he was not happy. Further, the applicant made it clear in his evidence that there were tensions between Sunni and Shia Muslims in Pakistan and that was reflected in the reaction of his second wife's family to his conversion.
In those circumstances, the Tribunal had difficulty accepting that the applicant would not have told his second wife about his interest in the Shia sect closer to the time that their relationship commenced, or, at the latest, when they married in March 2011. At the very least, the Tribunal would have expected the applicant to be concerned for the safety and welfare of his second wife as a Sunni Muslim entering a relationship with and marrying a Sunni Muslim who was converting to the Shia sect. In response to this concern, the applicant said that his second wife never interfered in religious affairs; never talked about religious matters and she never had knowledge about Shias. Only when she told her family about his conversion did problems begin. He said that during the marriage ceremony she never asked him if he believed in Sunni or Shia Islam.
Overall, the applicant claims that his second wife had no knowledge of or interest in religion, she never asked him about religion and he did not think that becoming a Shia would be of any significance to her. The Tribunal rejects the applicant’s claim that his second wife would not have been concerned about him becoming a Shia, especially given his own knowledge of tensions between the two sects. On the same ground, the Tribunal does not accept that the applicant himself thought that becoming a Shia would be of no significance or concern to his second wife or her family who had initially rejected him for being from a different caste.
The Tribunal also considered the applicant's evidence at his interview with the delegate that he thought that he could convert his second wife to become a Shia, he was impressed with Shias and this was why he would not encounter difficulties by converting to that sect. The Tribunal rejects those claims based on the applicant's own evidence about the tensions between Shias and Sunnis in Pakistan. The Tribunal does not accept the applicant would honestly believe that he would not encounter difficulties by converting including difficulties with the family of his second wife.
Overall, the Tribunal does not accept that a Sunni Muslim male entering what he described as a “love marriage” with his second wife, a Sunni Muslim, would not at any stage tell her that he was converting to become a Shia Muslim until over one year after their marriage. That is because the applicant himself referred to tensions between the two sects in Pakistan and would have been aware of the risk to the stability of the second marriage and the couple’s safety through him converting to become a Shia. The applicant's conversion and the difficulties this caused in his second marriage is the basis of his protection claims. The applicant’s evidence that he did not tell his wife about becoming a Shia until mid 2012 casts significant concern over the credibility of his account on which his protection claims are based. The applicant has not provided satisfactory explanations to alleviate those concerns.
Concerns about the applicant’s conduct from mid 2012
To the Tribunal, the applicant said that in mid 2012 he told his second wife for the first time that he had become a Shia. He said that his second wife told him that her family believed that what he had done was wrong because Shias were non-believers. This caused the applicant to return to Pakistan in March 2013 to see her family. The Tribunal asked the applicant whether he received any threats from his second wife or her family before returning to Pakistan in March 2013. In response, the applicant said that their attitude changed and he thought they could threaten him. The applicant then said that his second wife’s family told her that being Shia was not good and that the applicant should remain Sunni or “we do not go forward”. They also asked why the applicant would marry his second wife, a Sunni woman, if he thought it was better to be a Shia.
The applicant said that he remained in Pakistan in March 2013 for 20 days. When asked what happened during that time, the applicant said that he went “tactful” because he thought his second wife's family could harm him. The applicant said that his second wife's family would not sit with him and they behaved differently. The Tribunal asked the applicant whether on this occasion he was threatened. In response, the applicant said that the maternal uncle of his second wife told him to return to being Sunni otherwise they would kill him.
The applicant then said that when he went to Pakistan, he met those kinds of threats and he thought that the family of his second wife could harm him. For that reason, he told them he would have to return to his native village. There, his parents were against him converting to become a Shia but did not make any threats against him. When asked why he did not actually stay in Pakistan with his second wife, he said that he was on a holiday; initially he did stay with her, but her maternal uncle threatened him and he feared for his life.
In his evidence in his protection visa application, in the decision of the delegate and in his evidence at the Tribunal hearing, the applicant said that following his arrival in Australia in June 2011 he returned to Pakistan on a number of occasions. He returned in 2013, 2014, 2016, 2017, 2018, 2022 and 2024. In 2018 he returned to Pakistan twice. The Tribunal asked the applicant why he chose to return to Pakistan several times after his first return visit in March 2013 having received threats at that time. In response, the applicant said that he kept trying to convince his second wife that being Shia is better but, on each occasion, he felt that her family would harm him. Her maternal uncle told him to leave her alone and initially they told him to divorce her. The applicant said that he did get divorced from his second wife in May 2018, but her family then threatened his life to get certain property.
The Tribunal asked the applicant whether he stayed with his second wife on these visits from 2013 to 2018. In response, the applicant said that he did except for the journey in 2018 and that was because he thought he had received threats to divorce her or return to being a Sunni. He did not want to get divorced but that happened in May 2018 and after that he got attacked by people, he believed were sent by the family of his second wife. In this respect, the representative submitted a First Information Report (“FIR”) from Pakistan police recording allegations by the applicant that while on his way to see his [Brother A], two people fired three shots at him and ran away.
The Tribunal asked the applicant why his second wife's family would send people to attack him after they became divorced. In response, the applicant said that after the divorce her family said that they would kill him. When asked why they would make that threat then, he said that they wanted to get property he had purchased from his income in Australia and also because they were angry that he was Shia. When asked how killing him would enable them to have his property, the applicant said that he purchased this property in partnership with his second wife and the documents for the property were left with her.

The Tribunal asked the applicant why he returned to Pakistan in 2022 and 2024 if he had been attacked as he claimed in August 2018. In response, the applicant said his father was seriously ill and he did not go and see his second wife on those occasions. The applicant then gave evidence about being attacked again during his journey to Pakistan from April to June 2024. In this respect, the applicant provided an FIR dated 3 June 2024, recording his complaint to the police that while travelling in a vehicle he was followed by two youths in a vehicle behind him which hit his vehicle and following which the people in that vehicle began firing shots at him. In the FIR the applicant said that a friend came to the scene of the incident and took him to the police station.
To the Tribunal, the applicant said that the perpetrators were wearing masks, but he believed that they had been sent by the family of his second wife because that family had threatened to kill him. The applicant then said that when he returned to Pakistan on these occasions, he was afraid that he would suffer harm. The Tribunal asked the applicant to confirm that he held this fear when he returned to Pakistan in 2013 and when he returned there after that. In response, the applicant said that he thought that his second wife could become convinced that it was right to be Shia even though that did not happen. It was for this reason he purchased a property including her as a joint owner. He then said that however her family thought Shias were non- believers and Sunnis hate Shias.
The Tribunal asked the applicant whether he contacted his second wife while he was in Australia after leaving Pakistan in June 2011 and up until they divorced in May 2018. In response, the applicant said that they spoke frequently. When asked if, in those conversations, she told him that her family wanted to harm him, the applicant said that she also came to her family’s opinion that Shias were bad.
The Tribunal held concerns about the applicant’s conduct from mid 2012 when he told his second wife for the first time that he had become a Shia. It was the applicant's evidence that from that time he thought that his second wife's family would threaten him. On his return to Pakistan in March 2013 and from that time he said that he feared harm from her family. In those circumstances, the Tribunal had difficulty accepting that the applicant would then purchase a property in Pakistan from his earnings in Australia as some form of reconciliation with his wife and her family.
When this was put to him, the applicant said that he thought his second wife would become a Shia herself because of him spending money on her. The Tribunal does not accept that explanation in circumstances where his second wife made clear to him from mid 2012 that her family rejected his conversion and his own evidence that from 2013, he feared for his safety and being harmed by her family. The applicant added that he returned to Pakistan on these further occasions to try to convince his second wife that he was a good person and she could become a Shia.
The Tribunal put to the applicant that it was also concerned that he would return to Pakistan on a number of occasions given his evidence that from March 2013 he feared for his safety. In response, again, the applicant said that if he bought gifts for his second wife, she would believe in him. He said that because her family kept telling her that Shias were bad, he then sought to be divorced from her. He added that his second wife's maternal uncle had said that he had to become Sunni or the uncle would kill him. He then said that animosity between Sunnis and Shias was wide open and so he got divorced.
The applicant obtained a divorce from his second wife in May 2018, the applicant returning to Australia [in] May 2018. The Tribunal asked the applicant why he risked returning to Pakistan soon after from [July] 2018 to [August] 2018. The Tribunal was concerned that he made this journey when, earlier in his evidence, he said that after the divorce his second wife's family threatened to kill him. In response, the applicant said that he wanted to sell the property that he had purchased, his second wife's family had the documents and he hired a lawyer to have that property transferred to a friend and be sold.
Overall, the Tribunal holds concerns about the applicant's willingness to return to Pakistan on a number of occasions after March 2013 from which time he said that he feared being harmed by his second wife's family. In those circumstances and given the applicant's own evidence about tensions between Sunnis and Shias, the Tribunal does not accept that the applicant was willing to return to Pakistan a number of times to ultimately have his second wife herself become a Shia. The Tribunal is also sceptical of the applicant’s willingness to return to Pakistan soon after being divorced and being threatened, to make arrangements to sell a property.
This also includes his willingness to return to Pakistan in 2022 and 2024 notwithstanding his claim that this was to see his father who was ill. The applicant claims that in 2018 in another area away from where his second wife and her family lived, he was the victim of an attack which he believed was instigated by them. Overall, the applicant’s conduct in returning to Pakistan and also purchasing a property to share with his second wife as a means of restoring their marriage was not consistent with his claims that he was in danger of harm from his second wife's family from March 2013. His conduct in this respect casts significant concern over his credibility.
In written submissions dated 4 October 2024 the representative claimed that the applicant returned to Pakistan on these occasions to “get his affairs settled" with his second wife and the “Sunni community brutally against him”. In his evidence at the hearing the applicant referred to restoring his relationship with his second wife. He did not also mention the Sunni community more generally but even if he had made that claim, the Tribunal would reject it given the applicant said that he was trying to have his second wife convert to being Shia. If that was the case, the Tribunal does not accept that this would also be a means of resolving conflict with the related Sunni community opposed to the applicant becoming Shia.
Inconsistent evidence on taking his second wife to meet Shia families
The Tribunal asked the applicant whether, on his return trips to Pakistan, after coming to Australia in June 2011, he ever took his second wife to meet Shia families. In response, the applicant said that he did not do that. He said that after telling her that he had become a Shia her family expressed dissent and he never took her to meet Shia families. In stark contrast, at his interview with the delegate, when giving evidence about his dealings with his second wife on the occasions when he returned to Pakistan, he said that she rejected him for becoming a Shia and what she regarded as an “infidel”. He said that on one return journey he met some Shia families and introduced them to his second wife.
The applicant told the delegate that he did this because he thought that those families could talk to his second wife about the conflict between the couple and ease the tension between them. However, the conflict between the couple continued. The Tribunal put to the applicant that this evidence to the delegate was inconsistent with his evidence to the Tribunal that he did not introduce his wife to Shia families. In response, the applicant said that his evidence to the Tribunal was correct. He said that the interpreter at the interview with the delegate spoke “Hindi” not Urdu. In this respect, the interpreter used for the delegate interview spoke Urdu. At a later stage, after the interview commenced, the interpreter recorded the applicant as saying he wanted to speak with her in “Hindi”. The interpreter said that she could communicate with him in that language and the interview continued without the applicant making any complaint about the interpreter.
The Tribunal is not satisfied that the applicant's evidence to the delegate about introducing his second wife to Shia families was due to any misunderstanding between him and the interpreter. Rather, the evidence given was clear and it is inconsistent with his account to the Tribunal. Taking his second wife to meet Shia families on any of those return journeys is a significant claim when at the same time the applicant said that he was at risk of harm from her family. He has not provided an adequate explanation for this discrepancy and it casts significant concern over his credibility.[4]

Inconsistent evidence on the timing of telling his second wife about his conversion
[4] The Tribunal considers this inconsistency is not a rejection, denial or undermining of the applicant’s claims to be a person owed protection obligations (SZBYR v MIAC (2007) 253 ALR 609). Accordingly, it is not adverse information within the meaning of s 359A of the Act.

In his written statement dated 22 August 2018 the applicant said that he converted to becoming a Shia in May 2011. The applicant then said (verbatim):
“As I converted after my second marriage, my family problems started soon after. My problems became bad to worse over the time. Luckily I got visa for Australia and I got some relief. I left Pakistan for Australia [in] June 2011.”
In his statement the applicant then referred to returning to Pakistan to make things better in relation to the family of his second wife. The Tribunal put to the applicant that according to this content in his written statement, the applicant's second wife knew about his conversion to become a Shia before he left Pakistan in June 2011. The Tribunal put to the applicant that according to this content, problems with his second wife and the family of his second wife arising from his conversion, commenced before he left Pakistan in June 2011.
The Tribunal put to the applicant that this was inconsistent with his evidence at the hearing that he did not tell his wife about his conversion until one year after his arrival in Australia in June 2011. The Tribunal put to the applicant that this was inconsistent with his evidence at the hearing that conflict with the family of his second wife did not arise or occur until he told his second wife about his conversion in mid 2012. In response, the applicant said that his account at the hearing was correct. Before leaving Pakistan in June 2011, he would wear black clothes, as Shias did and his second wife would ask him why he was doing that.
The applicant's response does not resolve the inconsistency in his evidence at the hearing and his evidence in his written statement about when he told his second wife about his conversion and when his fear of harm arose. Those issues are central to the account on which he claims protection and the inconsistency again casts significant concern over his credibility. The Tribunal acknowledges that this concern relates to events the applicant claims to have occurred some years ago. However, if the applicant’s account was truthful, those events are significant in his life and events about which he can reasonably be expected to give consistent evidence.
Delay in applying for protection
The Tribunal put to the applicant that it had difficulty accepting that he would apply for protection in August 2018 more than five years after his fear of harm from his second wife's family arose. In response, the applicant said that he had a work visa allowing him to be in Australia. He said that he was thinking that he could restore the relationship with his second wife on further trips back to Pakistan. In written submissions dated 4 October 2024 the representative made the same claim on this issue. These responses do not overcome the Tribunal’s concerns given the applicant would have known that his work visa did not allow him to remain in Australia permanently. Further, the Tribunal has expressed above its concerns about the applicant's claims that from March 2013 he would attempt to resolve conflict with his second wife's family and actually have her become a Shia.
For the reasons given above, the Tribunal does not accept that the applicant would be willing to return to Pakistan a number of times on that ground when at the same time he said that from his first return journey in 2013 he feared for his safety, he received threats of harm and this took place in the context of tensions between Sunnis and Shias (as he claimed). Accordingly, the Tribunal does not accept his claim that the delay in applying for protection was due to attempts to restore his marriage to his second wife because the Tribunal does not accept that is why the applicant continued to return to Pakistan. The Tribunal finds that there has been significant delay on the applicant’s part in applying for protection which casts concern over his claims to genuinely fear harm in Pakistan. The applicant has not provided a satisfactory explanation for that delay.
FINDINGS
Findings on credibility
Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that his evidence is not credible and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant's claims that he held an interest in, engaged with and eventually converted to becoming a Shia. The Tribunal disbelieves the applicant's claims that he received threats from the family of a woman he claims to have married in 2011 including claims about being attacked in 2018 and 2024.
In making these findings, the Tribunal has taken into consideration evidence given by the applicant as to his knowledge of the Shia sect and his practice as a Shia in Australia. The Tribunal questioned the applicant as to the difference between Sunni and Shia Islam. The applicant's responses indicated a basic knowledge of that issue. His evidence in that respect was similar to basic responses he gave to the delegate related to the ceremonies of each sect. While the Tribunal accepts the applicant had that basic knowledge, that does not demonstrate that the applicant actually converted to Shia Islam and that the account of events on which he claims protection is true. The Tribunal does not have credible evidence as to the reasons why the applicant holds basic knowledge of Shia Islam.
Similarly, the applicant told the Tribunal that he had attended a Shia mosque in Australia occasionally but not regularly due to work commitments. Considering the applicant’s claims about his admiration of Shias and taking the significant step of converting to that sect, the Tribunal would reasonably expect the applicant to be attending a Shia mosque while in Australia more than just occasionally. Accordingly, the Tribunal finds that it does not have credible evidence that the applicant actually attended a Shia mosque in Australia. His claim about occasional attendance does not overcome the significant concerns the Tribunal holds about his credibility.
In making these findings, the Tribunal has taken into consideration documents provided by the applicant in support of his claims. With written submissions dated 4 October 2024, the representative provided a letter dated 13 August 2018 from the [leader] of a Shia Council in the area where the applicant's [Brother A] lived and where the Tribunal understands the applicant claims to have attended a Shia mosque. In this letter, the author said that the applicant belonged to and was a follower of the [Sect 1]. Also provided was a statement dated 29 September 2024 from a person who said that the applicant had been his friend since 2010, that he knew about the applicant’s second marriage being unsuccessful due to his conversion to becoming a Shia, that the applicant was attacked twice and remained frightened.
The representative also provided a written statement dated 13 August 2018 from another person ([Person A]) who said that the applicant had been his friend since 13 August 2010, that ([Person A] family was highly religious Shia, that the applicant converted to that sect in May 2011 due to his friendship with ([Person A] and that the applicant belonged to and followed the [Sect 1]. After the hearing, by letter dated 23 October 2024, the representative provided two further written statements, one from “[Person B]”, dated 12 October 2024, and the other from the applicant’s [Brother A], dated 14 October 2024. In his statement, [Person B] said that he had known the applicant since 2006 as they lived near each other in Islamabad. [Person B] basically related the applicant’s account of the difficulties he suffered following his conversion including the two incidents in 2018 and 2024. The applicant stated that [Person B] was the person who took him to the police station from the scene of the incident in June 2024. Similarly, in his statement, the applicant's [Brother A] put forward the same content as [Person B]. Both persons said that the applicant was led to become a Shia by ([Person A].
Overall, the documents submitted are evidence from certain individuals in Pakistan claiming to have either witnessed or known about the applicant’s conversion to being Shia and the difficulties encountered by the applicant resulting from that. However, the Tribunal holds significant concerns over the credibility of the applicant's account on which his protection claims are based. Those concerns include the applicant not telling his second wife about his conversion until one year after coming to Australia in June 2011, his willingness to return to Pakistan numerous times while at the same time claiming his safety was at risk, inconsistency in his evidence on important issues to do with his behaviour on return to Pakistan as well as when his difficulties with his second wife and her family actually first arose. Combined with that, is the delay in applying for protection.
Those concerns about the applicant’s credibility are significant and substantial. The contents of the statements from the various witnesses provided do not outweigh those concerns and, accordingly, the Tribunal does not give weight to those statements. At the hearing the representative requested that the Tribunal take evidence from the applicant's [Brother A] and his friend [Person B] over the telephone. The Tribunal requested the representative to provide written statements from those persons setting out what evidence that they would give. The Tribunal has mentioned above that in those statements both persons in effect claim that the applicant converted to being a Shia and suffered the harm that followed as put forward by the applicant.
The Tribunal is willing to accept that both persons would have given the same evidence over the telephone. However, even if they had done so, that would not overcome the significant concerns the Tribunal holds about the applicant’s credibility based on his own evidence. Their evidence would not overcome or explain the concern that the applicant did not disclose to his second wife his conversion until over one year after their marriage, his conduct in returning to Pakistan while claiming at the same time he was in danger, the inconsistencies in his evidence on important aspects of his account and his delay in applying for protection.
On that basis, the Tribunal has decided not to reconvene the hearing to take evidence from [Brother A] and [Person B] by telephone. Finally, the representative provided the two FIRs mentioned earlier in this decision along with photographs said to be of the vehicle damaged in the incident in 2024 and a document certifying the applicant's brother as the owner of the vehicle. The latter documents merely indicate a damaged vehicle owned by the applicant’s brother. The photographs by themselves do not demonstrate that the damage to the vehicle was caused as the applicant claims.

The representative also submitted a photograph of an elderly man in a hospital bed said to be the applicant's father in ill health. Even if this was the applicant’s father that does not verify or corroborate the applicant's claims based on which he claims protection. Even if his father was unwell in 2022 and 2024 the Tribunal still finds the applicant’s willingness to return to Pakistan while claiming that his life is in danger in that country to reflect poorly on his credibility. The photographs of the damaged vehicle owned by the applicant's brother and the photograph of a man said to be the applicant’s father in ill health do not in any way outweigh or overcome the Tribunal’s concerns about the applicant's credibility.
Accordingly, the Tribunal does not give weight to these documents. The Tribunal has considered the contents of the two FIRs produced by the representative. The contents of those documents put forward an account of two incidents similar to the account given by the applicant in which he claims he was attacked due to his conversion. Again, while those accounts may be similar to the account given by the applicant, that does not cause or enable the Tribunal to overlook the grounds on which the Tribunal finds his claims to have converted to being a Shia and the harm that followed are not credible.
In addition, the Tribunal put to the applicant at the hearing country information to the effect that false documents were prevalent in Pakistan and that included FIRs.[5] In response, the applicant said that his FIRs were registered and could be found online which meant that they were not fake. While the applicant makes this claim, at the hearing, the applicant also claimed that the police were against him and even if these FIRs were located online that would not cause the Tribunal to reject country information to the effect that police can be bribed to record certain information. Accordingly, for all of these reasons, the Tribunal does not give weight to these FIRs.
Findings on merits
[5] See Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 25 January 2022 at 5.52, 5.53:
“Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.
Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.”
Further, at 5.54 DFAT stated:
“FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.”
Does the applicant satisfy the refugee criterion for protection?
In his protection visa application form the applicant stated that he was a Shia Hazara. For the reasons given the Tribunal disbelieves the applicant’s claim to have become a Shia. With respect to his claim to being a Hazara, the Tribunal was concerned that in his protection visa application, where asked to specify languages he spoke, he did not mention that he could speak Hazaragi.[6] When this was discussed with him, the applicant said that his native village was in a district [named]. He said that the language spoken in that area and which he said was his mother tongue was Hindko (possibly the language used with the interpreter at the interview with the delegate). The applicant then claimed that this language and Hazaragi were the same (although country information says that Hazaragi is similar to Dari). The Tribunal put to the applicant that Hazaras were a specific group from Afghanistan who spoke Hazaragi. In response, the applicant said that he was not from that ethnic group.
[6] See Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 25 January 2022 at 3.3:
“The Hazaras are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligible with Dari. There are an estimated 600,000 to 1 million Hazaras in Pakistan. Most are Shi’a Muslims of the Twelver Sect, although some belong to the Ismaeli sect and a small number are Sunni.”
The Tribunal understands that the applicant is a Sunni Muslim from Abbottabad. As the Tribunal finds that the applicant’s evidence is not credible and his claims for protection are false, the Tribunal finds that it does not have credible evidence about the applicant’s life in Pakistan, why he left Pakistan and why he does not wish to return there. There is no credible evidence that the applicant suffered harm in Pakistan and that any person or entity in Pakistan seeks to harm him.
In written submissions dated 4 October 2024, the representative provided country information relating to events in Pakistan in 2021 and 2022 referring to a change of government, economic hardship and terrorist attacks to support the representative’s submission of religious minorities such as Shias suffering harm. In written submissions dated 23 October 2024 the representative provided a report issued in 2014 referring to the presence of Sunni militants with ties to terrorist groups increasing the risk of harm to Shias.
For the reasons given, the Tribunal finds that the applicant is a Sunni Muslim and did not convert to the Shia sect. Accordingly, the country information provided does not demonstrate that there is a real chance that the applicant will suffer serious harm on return to his native area in Pakistan. No other claim was advanced by the applicant or the representative that the applicant would suffer serious harm apart from serious harm due to his claimed conversion which the Tribunal disbelieves.
Accordingly, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Pakistan in the reasonably foreseeable future. He therefore does not hold a well-founded fear of persecution within the meaning of s 5J(1) of the Act and does not satisfy the refugee criterion in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons that the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Pakistan, the Tribunal also finds that there is not a real risk that the applicant will suffer significant harm in Pakistan.[7] Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the receiving country, Pakistan, there is a real risk that the applicant will suffer significant harm. He therefore does not meet the complementary protection criterion of s 36(2)(aa).
[7] MIAC v SZQRB (2013) 210 FCR 505.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of hearing:   10 October 2024
Representative for the applicant:              Mr M A Malik
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.
…