1923615 (Refugee)

[2025] ARTA 1402

1923615 (REFUGEE) [2025] ARTA 1402 (10 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Representative:  Mr Mahalingam Sutharshan (MARN 0961664)

Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number:  1923615

Tribunal:General Member S Durvasula

Date:10 March 2025

Place:Sydney

Decision:The Tribunal affirms the decision under review not to grant the applicant a protection visa.

Statement made on 10 March 2025 at 9:42am

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – race – Punjabi – religion – Islam – converted from Sunni Islam to Shi’a Islam – suffers significant mental health issues – may be subject to false blasphemy charges – applicant was able to freely participate in Shi’a religious activities – would practise his Shi’a faith in a low-key way – not satisfied the applicants have a well-founded fear – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a national of Pakistan, applied for the visa on 20 March 2018. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.

3. The applicant appeared before the Tribunal on 27 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   BACKGROUND

   Background information

5. The applicant is a [age]-year-old national of Pakistan. In his protection visa application, he provides the following biographical details:

   ·     He was born in Gujranwala, Punjab province.

   ·     He is married and has 3 [children].

   ·     His wife and children live in [City 1], Punjab [province].

   ·     He has one sister and one brother who live in Pakistan and two brothers who live in [Country 1].

   ·     He lived at the same address in [City 1] from his birth until August 2007.

   ·     The applicant travelled to [Country 1] for work and lived there from August 2007 to January 2012.

   ·     He returned to Pakistan in 2012 and lived at the previous address in [City 1] from February 2012 to February 2018.

   ·     His ethnic group is Punjabi and his religion is Islam.

   ·     The applicant completed high school in Pakistan and then completed a course [at] vocational college in December 2001.

   ·     He was employed as a [occupation] in [City 1] from January 2002 to December 2006; unemployed between January 2007 and August 2007; employed [at] a store in [Country 1] from August 2007 to January 2012; and was unemployed between February 2012 and November 2015.

   ·     His last job before he left Pakistan was a self-employed business owner at [a] Store,  [from] November 2015 to August 2017. From September 2017 to March 2018, he was unemployed.

6. The applicant’s immigration history is set out in the delegate’s decision record. The applicant applied for a Subclass 600 visitor visa on 24 October 2017. The visa was granted on 24 January 2018. The applicant arrived in Australia on this visa on [date] February 2018 and applied for a protection visa on 20 March 2018.

7. The applicant also provided return airline tickets to the Tribunal showing that he departed Australia for [a country] on [date] May 2024 and returned on [date] June 2024. At the hearing, the applicant explained that he travelled to [there] to meet his family as he was lonely and missed them. He did not travel to Pakistan at this time.

   Protection visa claims

8. The applicant’s protection visa claims are set out in a statutory declaration that was provided with his visa application, dated 19 March 2018. These claims are summarised below:

   a.    The applicant was born into a Sunni Muslim family.

   b.    His family are not very strict Islamic followers. His relatives, society and neighbours are very conservative and perceive anyone who believes in Shi’a Islam to be an ‘infidel’.

   c.     When he was studying, he used to have Shi’a friends and he went to their place of worship called the Imambargah[1] or Majli.[2] He used to listen to their prayers and noticed these differed slightly from Sunni Muslim prayers. He spent time with his Shi’a friends during Moharram.[3]

   [1] A congregation hall for Shia Muslim commemoration ceremonies, especially those associated with the mourning of Muharram – see Arabic term to describe a council or sitting place where community members gather – see

   [3] A key event in the Sunni-Shi’a schism where Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family – see Department of Foreign Affairs and Trade, Country Information Report – Pakistan (25 January 2022) at 3.58 (DFAT Country Information Report  - Pakistan)

   d.    In August 2007, he went to [Country 1] to work [in] a [store]. During that time, he lived and worked with other Shi’a Muslims. He went with them to the Imambargah, listened to religious scholars and learnt more about Shi’a Islam.

   e.    He returned to Pakistan in January 2012. He did not work as he had savings from work and his family (mostly his brother) supported him. He got married in 2012.

   f.   In November 2015, one of his friends, [Mr A], encouraged him to invest in his business as a silent investor. The applicant invested the equivalent of AUD$18,000 in the business from his savings and his family’s support.

   g.    At that time the applicant was not aware that [Mr A] and his family followed the more conservative Wahhabi sect of Sunni Islam.

   h.    The applicant continued to ‘hang around’ with his Shi’a friends and went with them to the Imambargah.

   i.   In August 2016, the applicant’s son died through an accidental drowning, which caused him mental health issues. The applicant lost faith in religion. His Shi’a friends used to visit him and were a great help to him.

   j.   The applicantactively listened to their preaching and gradually started moving towards Shi’a Islam. He went to the Shi’a mosque in [City 1] and stopped going to the Sunni mosque.

   k.     He told his wife he was moving towards Shi’a Islam. She agreed with his decision. The applicant felt more happy and relaxed following Shi’a Islam.

   l.   His family were concerned for his safety after they learned that he was following Shi’a Islam and advised him not to follow it to avoid harm. The applicant told them that he could not change his religious belief.

   m.   The applicant confirmed his allegiance to Shi’a Islam on 1 August 2017. There was no formal conversion process, but he needed to give formal allegiance to Shi’a Islamic principles and the blood lineage of the Prophet.

   n.    After his business partner learned about the conversion, he became very angry with the applicant. He told the applicant he would go to hell and said would be punished with death. He said that following Shia Islam is ‘haram’[4] and accused the applicant of a serious crime and sin.

   o.    The applicant asked [Mr A] to return his money, but he only returned AUD$8,000 and said he did not deserve to get the whole amount as he had committed a sin.

   p.    The applicant stated that it was his right to follow any religion. [Mr A] became angry and warned that he would expose the applicant as a person who had defamed Sunni Islam and committed a sin. He said he had connections with Sunni extremists and would take revenge against him for following Shi’a Islam. He was angry and said the applicant should be killed for defaming Sunni Islam.

   q.    The applicant told his wife and he said she should keep a low profile. She advised him to leave the country as [Mr A] or relatives would take steps to punish him.

   r.     The applicant moved to another house and contacted an agent to help him get a visa to come to Australia. The agent advised him that he had applied for the visa on 24 October 2017 and it was granted on 24 January 2018. The applicant left Pakistan on [date] February 2018. He stayed back as his wife was pregnant and his daughter was born on [date].

   s.     After coming to Australia, the applicant started going to the Shi’a mosques at [a suburb] and [Suburb 1]. He sought immigration assistance to apply for a protection visa.

   t.   If he returns to Pakistan he fears he would be harmed because he converted from Sunni Islam to Shi’a Islam. He would be considered a traitor to Sunni Islam and a person who had violated Sunni Islamic principles by Sunni extremists and conservatives, and a person holding an opinion against Sunni extremists.

   u.    He also suffers significant mental health issues and would face practical difficulties moving to other areas of Pakistan.

   [4] Arabic term meaning ‘forbidden by Islamic law’ – Macquarie Dictionary

9. With the application, the applicant submitted further evidence which included:

   ·     Death certificate for the applicant’s son, dated 2 August 2016.

   ·     Birth certificate for the applicant’s daughter born on [date].

   ·     5 photographs of the applicant’s claimed business in Pakistan and 2 photographs of his religious activities in Australia.

   ·     Affidavit from the applicant’s business partner, Mr [Mr A], stating that he has ‘some kind of business deal’ with the applicant. He borrowed PKR 18 lakh[5]  from the applicant and delivered cheques to the applicant for PKR 10 lakh (dated 11 September 2017) and PKR 8 lakh (dated 25 September 2017). When he delivers PKR 18 lakh to the applicant, he shall take back the cheques.

   [5] 1 lakh is 100,000 Pakistani rupees (PKR)

10. The applicant was interviewed by the Department on 7 February 2019. The Tribunal has listened to a recording of the interview.

    Evidence before the Tribunal

11. After lodging the application for review, the applicant provided a further statutory declaration dated 20 February 2025, which repeats the claims made above. The applicant also adds:

    ·     He continues to practice his Shi’a religion in Australia and is involved in Moharram and Asura activities.

    ·     Due to his beliefs, he believes he will be considered as a person who has defamed Sunni principles and a blasphemer, due to his active practice of Shi’a Islam. He also believes he will be targeted by Taliban extremists due to his conversion.

    ·     His profile is different and identifiable because he was born into a Sunni family and became Shi’a. The security situation in Pakistan has worsened and if he returns, he will face serious harm.

12. The applicant also provided:

    ·     A statement from his wife dated 7 February 2025, which states that the applicant used to go to the Shia Majili, especially in the month of Muharram, after he started the new business partnership with his friend. His friend said he did not like the applicant’s regular attendance at the Shia mosque and a business rivalry started between them. He removed the applicant from the business, refused to pay him the PKR 18 lakh he had invested and also threatened to kill him.

    ·     A statement from [Mr B] dated 7 February 2025, stating that he and 4 other people used to manage the [store]. He was close to the applicant and [Mr A] and they were both good friends and business partners. [Mr A] belonged to the Ahl-e-hadith sect and he did not like the applicant converting to Shi’a. He removed him from the business and refused to pay his business share to give him punishment. Later on, he threated the applicant.

    ·     A similarly worded statement from [Mr C]. He does not state his relationship with the applicant and adds that the applicant was a ‘silent partner investor’ in the business.

13. The applicant’s representative has submitted several articles and other country information to the Department and the Tribunal about: attacks against Shi’as in Pakistan; the claimed
    re-emergence of Sunni extremists organisations in Pakistan including the Tehrik-e-Taliban (TTP); and the claimed general escalation of violence and growing Islamic extremism in Pakistan. In a submission dated 20 February 2025 and at the hearing, the representative submitted that the applicant would be targeted because of his religious beliefs, practice and activities and Shi’a identity. He is a practising Shi’a and has abandoned Sunni Islam. Sectarian violence between Sunni Deobandi and Shi’a Muslims and attacks against Shi’as have escalated in recent months. As the applicant has abandoned Sunni Islam and is a convert, the Deobandi Sunnis, including his close relatives. Terrorist activities have further increased in recent times, particularly since the last DFAT report was published in 2022.

    Tribunal hearing – 27 February 2025

14. The applicant advised that his wife and 3 children currently live with her parents in [City 1]. She is financially supported by him and her father. After the applicant left Australia, she moved to her parents’ place as she is the only daughter and wanted their support. His children attend school. His brother currently lives in the family home in [City 1]. He has regular contact with his wife and children and they are all fine. He occasionally contacts his brother and he is also fine.

15. When he was in Pakistan, he lived at the same address in [City 1] from his birth until his departure for Australia. This was the family home where his parents lived. His parents passed away in 2012. After this, the applicant and his brother lived there with their families.

16. The Tribunal asked the applicant about his physical and mental health. The applicant stated that he is in good health and does not take any regular medication. He occasionally takes asthma medication when he needs it. He does not see any health professionals on a regular basis. He only sees the GP as required. He works casually in a [job].

17. When asked why he could not return to Pakistan and what he feared would happen on his return, the applicant stated that he belonged to a Sunni family. He changed his religion to the Shi’a sect and no-one liked it, especially his neighbours, and his friend and business partner, Mr [Mr A]. [Mr A] is a Wahhabi Sunni and they are more ‘staunch’. He threatened the applicant and made him leave their joint [business]. If he returns to Pakistan, he fears harm from [Mr A], as he is from a strong family and has connections, and fears that he will get the applicant killed or instigate fake blasphemy charges against him.

    Practice of Shi’a Islam

18. The applicant stated that his family were Barelvi Sunnis. They were quite moderate and tolerant of Shi’a Muslim people. He has a Muslim name which is not readily identifiable as a Shi’a name. He first had experience of Shi’a Islam when he met Shi’a friends at school. They used to talk about the Prophet and his family and he got interested ‘step by step’. When he worked in [Country 1], he started attending Majlis (religious social gatherings) and the Imambargah. He was attracted to the way that Shi’a scholars explained things. He described some of the differences between Shi’a Islam and Sunni Islam, his motivations for converting to Shi’a Islam and the process for conversion.

19. After he returned to Pakistan in 2012, he met his Shi’a friends from school and used to attend their religious social gatherings at the Majilis. He regularly attended the Imambargah during the month of Muharram, usually on the 9^th and 10^th days. He also attended a Muharram procession in 2016 and in 2017, on the 10^th day. He continued going to the Sunni mosque at that time.

20. After his son died in 2016, he found comfort with his Shi’a friends. He started going properly to Shi’a religious places of worship and praying with his Shi’a friends on a more regular basis. When asked how his practice differed after he converted in August 2017, the applicant stated that he started going more regularly to the Shi’a place of worship and stopped attending the Sunni mosque. He did not have a particular role and attended as an ordinary worshipper.

21. He told his wife and siblings about his conversion and they did not object. His wife was supportive of his decision. His wife’s family did not object. His siblings told him not to convert as they were scared for him, but they did not object in principle.

22. The applicant stated that he had no difficulty participating in Shi’a religious events in Pakistan, including Muharram events. The Tribunal put to the applicant that it seemed he was able to freely practice as a Shi’a Muslim, pray with other Shi’a people and attend Muharram events and processions without difficulty in Pakistan between 2012 and 2017. This may indicate that he would not face harm in practising his religion if he returned.

23. The applicant responded that people knew he was Sunni so they did not harm him. He did not spend too much time with his Shi’a friends and mainly prayed at home. A lot of Barelvi Sunni people also go and see the public procession during Muharram. Some Wahhabi Sunni people do not like it and did not let the procession go through their streets. He did not experience any harm in Pakistan due to his participation. He only had problems from [Mr A], who made him feel fearful and said it was a sin. His neighbours also did not like it.

24. In Australia, he has been attending the mosque at [Suburb 1]. He mainly goes for Muharram events. He goes for Friday prayers when he can. He goes there to pray and attend lectures and does not have a particular role at the mosque.

    Relationship with business partner

25. The applicant stated that he first met [Mr A] when they were at college together. They were acquaintances at that time. When he returned to Pakistan in 2012, they started playing [sports] together and they got to know each other better. In 2015, [Mr A] suggested that they go into business together. They both worked at the shop which sold [products]. The applicant and [Mr A] divided their days at the shop and there were 1 or 2 days where they overlapped. They mainly talked about business matters and did not discuss religion. Contrary to what was stated in his written statement, he was not a ‘silent partner’.

26. At the end of 2015, about 2 or 3 months after starting the business, the applicant discovered that [Mr A] was a Wahhabi Sunni. [Mr A] found out the applicant was going out with Shi’a friends and disliked it. He did not say anything, but looked at the applicant in a disapproving way.

27. In 2016, the applicant started seeing his Shi’a friends more after his son’s death. His relationship with [Mr A] slowly became worse. He looked at the applicant differently and talked with him angrily. He did not threaten the applicant at that time.

28. In September 2017, [Mr A] found out about his conversion through other employees at the shop. He kicked him out of the business and only returned half of his money. He told the applicant that being a Shi’a was a sin, that he can be killed and he has connections with Sunnis who can do this. He did not physically harm the applicant.

29. The Tribunal asked the applicant why [Mr A] did not threaten him earlier if he had been associating with Shi’a friends and praying with them since 2012. The applicant stated that he did not go out with them that often and usually prayed at home. He told [Mr A] he was going to see old school friends.

30. The Tribunal asked the applicant about the affidavit from [Mr A] he had submitted with the visa application. This appeared to indicate that [Mr A] had given the applicant 2 cheques totalling PKR 18 lakh on 11 August 2017, which seemed to indicate that he had returned the amount the applicant had invested in the business. The applicant explained that [Mr A] had prepared this affidavit after he had kicked the applicant out of the business. He had drawn up 2 cheques for PKR 8 lakh and PKR 10 lakh. However, he only gave the applicant one cheque for PKR 8 lakh. He did not give him the second cheque for PKR 10 lakh. The Tribunal put to the applicant that [Mr A]’s actions in providing a detailed affidavit and drawing up cheques appeared to indicate that he did not intend to harm the applicant, but that he was simply bringing their business relationship to an end. The applicant responded that he must have been planning something against the applicant in his brain and he kept the applicant’s money.

1. The applicant was scared about what [Mr A] might do, so he did not attend the shop after he was kicked out of the business. He saw [Mr A] once at the market after that, but [Mr A] did not see him. [Mr A] did not come to his family home or try to look for the applicant.
   No-one actually threatened him, but he felt scared.

   Threats from neighbours and others

2. The Tribunal asked the applicant about the claims in his written statement and his earlier claims that he experienced threats from neighbours and relatives and asked him to explain this in more detail. The applicant clarified that he did not actually receive any threats from neighbours. The neighbours in his area did not actually say or do anything towards him. He believes they knew he was Shi’a and they just gave him ‘funny looks’ when they saw him and that made him feel scared.

3. Contrary to what was in his earlier written statement and in the representative’s submission, he did not fear any harm from relatives. His relatives had not said anything to him about his conversion and his immediate family and siblings did not object to his conversion.

   Statements from third parties

4. The Tribunal discussed with the applicant, the statements he had submitted from his wife and 2 former colleagues. The Tribunal noted that the statements were worded in a similar way, had limited detail, repeated the applicant’s claims without additional detail, and may have been prepared according to the applicant’s instructions. The applicant responded that these people had written their own statements in Urdu but when the typists translates them and types them up in English, they may use similar words.

   Events before applicant’s departure from Pakistan

5. The applicant had initially stated that he had lived at his family home the whole time he lived in Pakistan. Later in the hearing he stated that after the business relationship with [Mr A] ended, he moved to his paternal uncle’s place, about 500 metres away from the family home as he feared for his safety. He did not leave the house much and stopped attending the Shi’a places of worship.

6. Between September 2017 and February 2018, he did not experience any harm or threats from [Mr A] or other people. [Mr A] did not try to come to his family home and did not come to his uncle’s place. He believes that [Mr A] knew where his family home was, but not his uncle’s place.

7. He returned to his family home in January 2018 as his wife was about to give birth. He stayed there until his departure to Australia in February 2018. He did not have any contact with [Mr A] or his associates in that time. He delayed his departure to Australia as his wife had just given birth to their daughter under Caesarian-section and needed his care.

8. The Tribunal put to the applicant that the fact that [Mr A] did not try to find him or threaten him for 4 months when he remained in [City 1], may indicate that he did not intend to harm the applicant. The applicant responded that he cannot say anything about that, but he believed that [Mr A] was looking for a way to harm him and ‘hatch a plan’, where he could harm the applicant and protect himself. He believed that [Mr A] was planning to create a story against the applicant for which he would be blamed, such as blaming him for blasphemy. However, he did not do that in the time the applicant was in Pakistan.

9. The Tribunal also discussed with the applicant, the definitions of ‘serious harm’ and ‘significant harm’ under the Act. The Tribunal put to the applicant that that mere looks from his neighbours and [Mr A], being spoken to in an angry manner, or the termination of the business arrangement may not meet the definition of ‘serious harm’ or ‘significant harm’ required to meet the refugee or complementary protection criteria. In response, the applicant referred to a different matter reported in the media, where someone had had a false charge of blasphemy put on him.

   Future harm

10. If he returned to Pakistan, the applicant would practice in the same way he did before he left, although he believes the situation is not right. He will attend Muharram events at the Imambargah. There are 5 to 6 Shi’a places of worship in [City 1] he could attend. He would never say anything against the Prophet, the Koran or the Sunni faith. He has never said anything that faith in the past.

11. Neither the applicant nor any of his family members, have had any contact with [Mr A] or any of his associates since he has been in Australia. The last contact was in September 2017. Neither [Mr A], nor any of his associates, have visited the family home or asked the applicant’s family members about his whereabouts. The applicant does not know where [Mr A] is now and has not tried to find out.

12. The Tribunal put to the applicant that given the significant passage of time (approximately 7.5 years), [Mr A] may no longer be interested in harming him and he may not face a real chance of serious harm if he returned to Pakistan. The applicant responded that [Mr A] is only interested in harming him, which is why he has not approached his family. People like him are very staunch with their religion. [Mr A] took the conversion it personally because the applicant was his friend.

13. The Tribunal discussed with the applicant, country information related to Shi’a Muslims in Pakistan, blasphemy and incidents of sectarian violence. This is discussed further in the Tribunal’s findings below.

14. The applicant stated that there were no other reasons he feared harm, other than what he had raised at the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    REASONS AND FINDINGS

21. The issues in this case are whether there is a real chance, if the applicant returns to Pakistan, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

23. The applicant provided a copy of his passport to the Department, which shows he is a citizen of Pakistan. The Tribunal finds, based on the applicant’s passport, that he is a national of Pakistan and has assessed his claims on this basis.

    Summary of applicant’s claims

24. The applicant claims he has a well-founded fear of persecution for reasons of his religion. He claims he converted from Sunni Islam to Shi’a Islam in 2017 would continue to practise as a Shi’a Muslim if he returned to Pakistan. The applicant claims he has been interested in Shi’a Islam since he was at school, his interest grew over time and he formally converted in August 2017. Between 2012 and September 2017, the applicant claims to have attended Shi’a places of worship with his friends and participated in Muharram events in Pakistan. He claims he did not experience any harm in doing so. He claims that neighbours gave him ‘funny looks’ but did not actually say anything to him.

25. The applicant claims he was in a business relationship with a former friend, Mr [Mr A], where they jointly operated a [business]. He claims that [Mr A] was a strict Sunni Muslim of the Wahhabi sect who did not like Shi’a people. He claims that [Mr A] disapproved of the applicant’s association with Shi’a Muslim people and disapproved  his full conversion to Shi’a Islam in August 2017. He claims that after [Mr A] found out about his conversion, he told the applicant that being a Shi’a was a sin and he had connections with Sunni people who could kill him. He also asked the applicant to leave the business and gave him back only PKR 8 lakh out of his PKR 18 lakh investment. The applicant claims that after that, he feared for his safety so he stopped attending the mosque and moved to his maternal uncle’s house before he came to Australia.

26. The applicant claims that if he returns to Pakistan, he will be harmed by [Mr A]. He also claims that he may be subject to false blasphemy charges, as well as sectarian violence and terrorist activity against Shi’a people. He claims he is at greater risk because he had abandoned Sunni Islam and converted to Shi’a Islam.

    Does the applicant satisfy the refugee criterion for protection?

    Claim of conversion to Shi’a Islam and applicant’s religious practice

27. The Tribunal accepts the applicant was born as a Sunni Muslim and his family are Sunni Muslims. The Tribunal accepts the applicant grew up and lived in [City 1] Punjab and is from the Punjab province.

28. The Tribunal accepts the applicant formally converted from Sunni Islam to Shi’a Islam in August 2017. The Tribunal is satisfied the applicant has given a reasonably convincing explanation of his motivation for converting to Shi’a Islam. At the hearing, he was able to demonstrate his understanding of the differences between Sunni and Shi’a Islam, including the fundamental beliefs, the ways of praying and the important religious events. The Tribunal accepts the applicant had several Shi’a Muslims friends in Pakistan and he frequently attended Shi’a religious gatherings and events when he was in [Country 1], and after he returned to Pakistan in 2012. The Tribunal accepts he used to attend the Imambargah and Shi’a Majilis on a regular basis. The Tribunal accepts his evidence that he regularly attended Muharram events, usually on the 9^th and 10^th day and attended Muharram processions in 2016 and 2017. The Tribunal accepts that he found increasing comfort in Shi’a Islam and the support of his Shi’a Islam friends after his son passed away in 2016. The Tribunal finds he participated as an ordinary worshipper, practised in a low-key manner and did not have a particular role.

29. The Tribunal finds, based on the applicant’s evidence at the hearing, that he participated in Shi’a religious activities for 5 years in Pakistan between 2012 and 2017, with increased activity after his son died in August 2016. The Tribunal finds the applicant was able to freely participate in Shi’a religious activities and did not experience any harm in Pakistan during this time. The Tribunal does not accept the applicant’s explanation that he did not go out much with his Shi’a friends before his conversion and he mostly prayed at home. This contradicts the applicant’s other evidence at the hearing about the extent of his Shi’a religious practice before his formal conversion, which is outlined in the paragraph above.

30. The Tribunal has considered the applicant’s evidence that people did not harm him because they knew he was still Sunni, and he would be in more danger after converting. The Tribunal does not accept this explanation. People who did not know the applicant may have assumed he was Shi’a, given that he was frequently associating with other Shi’a people, participating in Muharram events and regularly attending Shi’a places of worship, particularly after his son died in 2016. The applicant’s own evidence was that Barelvi Sunni people in his area were quite tolerant of Shi’a people and used to come out and watch public Muharram events. This indicates they may have assumed the applicant was Shi’a, but did not object to it.

31. The Tribunal accepts the applicant has been attending a Shi’a mosque in [Suburb 1] since he has been in Australia, particularly during Muharram. The Tribunal finds he has participated as an ordinary worshipper and does not have a particular role at the mosque. The Tribunal accepts that he has attended a Shi’a mosque, because of his religious faith, and not solely for the purpose of strengthening his refugee claims. The Tribunal therefore has not disregarded his conduct under s 5J(6) of the Act.

    Claim of harm from business partner, [Mr A]

32. The Tribunal accepts that at the end of 2015, the applicant entered into a business relationship with [Mr A]. While there is no formal documentary evidence of the business, such as a business registration, the Tribunal is prepared to accept that the applicant and [Mr A] established a [business] which they ran jointly. Contrary to the applicant’s written statement and the witness statement from [Mr B], the Tribunal does not accept that he was a ‘silent partner’, but that he had an active role in the business. According to his evidence at the hearing, he and [Mr A] used to share their time managing the shop, he attended at the shop a few days a week and he regularly used to discuss business matters with [Mr A].

33. The Tribunal accepts that [Mr A] was a Wahhabi Sunni Muslim and did not approve of the applicant associating with Shi’a people or attending Shi’a places of worship. The Tribunal accepts that he may have been angry with the applicant and looked at him in a disapproving way. The Tribunal accepts that [Mr A] ended the business relationship with the applicant on or around September 2017, as he disapproved of the applicant converting to Shi’a Islam. The Tribunal accepts [Mr A] only returned PKR 8 lakh from the applicant’s PKR 18 lakh investment.

34. For the reasons set out below, however, the Tribunal does not accept that [Mr A] threatened to kill the applicant because he had converted to Shi’a Islam, or that he threatened to use his connections to Sunni extremists to kill or harm the applicant.

35. Firstly, according to the applicant’s evidence, [Mr A] was aware of the applicant’s association with Shi’a Islam since the commencement of their business partnership at the end of 2015. Despite this, [Mr A] continued working with the applicant. The Tribunal does not accept the applicant’s explanation at the hearing that he did not go out with his Shi’a friends that often during that time and he had only told [Mr A] that he was seeing old school friends. This contradicts his earlier evidence that he regularly participated in Shi’a religious events such as Muharram and he regularly attended the Imambargah and Majilis with his Shi’a friends. He also stated that his religious activity increased after his son passed away in 2016 and he started ‘going properly’ to Shi’a religious places of worship and praying with Shi’a friends on a regular basis. The Tribunal considers that if [Mr A] had wanted to harm the applicant because of his association with Shi’a Islam, and if he was as extremist as the applicant claimed, he would have taken steps to harm or threaten the applicant earlier, given that they had been working together regularly since 2015.

36. Secondly, the Tribunal finds that even after [Mr A] discovered that the applicant had converted to Shi’a Islam in August 2017, he did not act on his claimed threats to harm the applicant. The Tribunal has considered the applicant’s explanation that he moved to his paternal uncle’s place and stopped attending the mosque as he feared for his safety. The Tribunal accepts the applicant may have had a subjective fear following the termination of the business arrangement with [Mr A]. The Tribunal does not accept, however, that there was any objective basis for this fear, or that his fear was well-founded.

37. This is demonstrated by the fact that the applicant was able to remain in Pakistan for a further 5 months, from September 2017 to [date] February 2018, without experiencing any harm. During this time, [Mr A] did not approach the applicant at his family home to try to harm him, despite knowing where he lived. He did not use his claimed connections to harm the applicant. The applicant’s uncle’s residence was only 500 metres from his own house and the Tribunal considers the applicant would have been visiting his family home on a regular basis to see his pregnant wife and his children. The applicant also gave evidence that he returned to his own house in January 2018 following the birth of his daughter. Despite this, [Mr A] took no action against him. The Tribunal does not accept the applicant’s explanation that [Mr A] did not take action immediately as he was developing a plan to harm the applicant in the future. The Tribunal finds it is not credible that [Mr A] would have refrained from taking against the applicant in the 5 month period the applicant remained in Pakistan, if he was as angry and extremist as the applicant claimed.

38. Thirdly, while the Tribunal has accepted that [Mr A] ended the business relationship with the applicant and did not return some of his investment money due to the applicant’s conversion to Shi’a Islam, the Tribunal does not accept that this caused serious or significant harm to the applicant, or that it demonstrates that [Mr A] intended to cause the applicant future harm. As discussed with the applicant at the hearing, [Mr A]’s actions in providing a detailed affidavit, drawing up cheques and returning some of the investment money, demonstrates that he did not intend to cause further harm to the applicant, but that he was simply bringing their business relationship to an end.

1. The Tribunal does not accept that the loss of part of his investment money caused the applicant serious or significant harm. He was able to afford travel to Australia and he was able to continue supporting himself and his family without working. He previously did not work for 3 years between 2012 and 2015 with the assistance of financial support from his family. The Tribunal has considered the applicant’s explanation that [Mr A] must have been planning something against the applicant and he kept the applicant’s money. The Tribunal does not accept his explanation, given [Mr A]’s considered actions in drawing up a detailed affidavit, and the Tribunal’s findings about the lack of any harm from [Mr A] after the business relationship ended.

2. The Tribunal has considered the statements from the applicant’s wife and 2 friends and whether they support the applicant’s claims that he faced threats from [Mr A]. The Tribunal considers that these statements provide limited detail, are similarly worded and repeat the applicant’s claims. The applicant claimed that a typist may have typed the statement in English in a similar way. Nevertheless, the applicant’s wife simply repeats the applicant’s claims and has limited details. The letter from Mr [Mr C] is factually incorrect as it states that the applicant was a ‘silent partner investor in the business’, which is inconsistent with the applicant’s evidence. The letter from [Mr B] provides limited detail about the nature of the claimed threats by [Mr A]. The Tribunal therefore gives these letters no weight and finds they do not overcome the Tribunal’s other concerns about the applicant’s claims to have received threats from [Mr A], which are outlined above.

   Claim of harm from neighbours and relatives

3. At the hearing, the applicant confirmed he had not received any threats from relatives who are in politics and the army, and did not fear harm from them, contrary to what was stated in his written statements and his representative’s submission. He gave evidence that his siblings and his wife’s family did not object to his conversion and his wife was supportive. On this basis, the Tribunal does not accept that there is a real chance of serious harm or real risk of significant harm from relatives due to the applicant’s religion.

4. The Tribunal does not accept that the applicant actually received any threats from neighbours. The applicant claimed that neighbours gave him ‘funny looks’, but the Tribunal does not have sufficient evidence to be satisfied that this occurred because of the applicant’s religion, given that the neighbours did not actually say anything to him or indicate that they disapproved of his Shi’a religion. On this basis, the Tribunal does not accept there is a real chance of serious harm or real risk of significant harm from neighbours due to the applicant’s religion.

   Applicant’s mental health

5. In his written protection visa claims, the applicant states that he has ‘significant mental health issues’ and would face practical difficulties moving to other areas of Pakistan. With the visa application, he submitted the following evidence:

   ·     A letter from psychologist, [Mr D], stating that the applicant attended his first appointment for psychotherapy and counselling on 5 February 2019.

   ·     A psychological report and assessment from [Mr D], dated 6 August 2019. The assessment repeats the applicant’s protection visa claims as reported by him. [Mr D] assess that the applicant is suffering from Post Traumatic Stress Disorder (PTSD) and insomnia and recommends further treatment for depression and unresolved grief after the death of his son.

   ·     Patient summaries from the applicant’s general practitioner dated 29 January 2019 and
   2 February 2019, stating that the applicant presented with depression and anxiety and was being prescribed medication for asthma and allergic rhinitis.

6. At the hearing, the applicant advised that he was not taking any regular medication or obtaining treatment for any current medical conditions. He advised that he was in good health and was currently working. The above evidence provided with the visa application is now approximately 6 years old and provides limited details.

7. In relation to the report from the psychologist, [Mr D], the Tribunal does not accept that this report supports the applicant’s claims to fear harm if he returns to Pakistan. [Mr D] relies on the history of claimed harm as recounted by the applicant and accepts these at face value as the reasons for his symptoms, without any independent analysis or diagnosis. He also provides an opinion on the country situation in Pakistan and the Tribunal considers he has stepped outside his role as a health professional. In addition, [Mr D] does not indicate how many times he assessed the applicant or indicate what diagnostic tools he has used to assess the applicant. He refers to the applicant being ostracised and attacked by family members, which did not form part of the applicant’s protection visa claims. For these reasons, the Tribunal gives no weight to the report from the psychologist’s report.

8. On the evidence before it, the Tribunal does not have any current medical evidence before it to be satisfied that the applicant has a mental health condition which gives rise to a claim of harm. The applicant did not raise his mental health as a claim when asked at the hearing if there was any other reason he fears harm. For the reasons set out above, the Tribunal does not accept the applicant has a mental health condition that gives rise to a real chance of serious harm or a real risk of significant harm if he returned to Pakistan.

   Is there a real chance of harm if the applicant were returned to his home area of Pakistan in the reasonably foreseeable future?

9. The Tribunal accepts that if the applicant returned to Pakistan, he would return to his home area of [City 1], Punjab, where his wife and children reside. The Tribunal finds that he would continue to practise his Shi’a Muslim faith as an ordinary follower. The Tribunal accepts that he would attend Shi’a places of worship on a regular basis. The Tribunal accepts that he would get involved in annual Muharram events, particularly on the 9^th and 10^th days and that he may participate in public processions. The Tribunal finds he would otherwise practice his faith in a low key manner, as he had done previously in Pakistan and as he has done in Australia. The Tribunal finds that his wife, his wife’s family and his siblings would support his decision to practise Shi’a Islam and would not ostracise him or discriminate against him for that reason. The Tribunal has not accepted the applicant’s claims regarding past threats of harm from his business partner or from neighbours.

   Future harm from former business partner

10. The Tribunal does not accept the applicant’s business partner, [Mr A], had previously threatened to kill or harm the applicant because he had converted to Shi’a Islam. The Tribunal has not accepted that he threatened to use his connections to Sunni extremists to kill or harm the applicant.

11. The Tribunal does not accept the applicant has any ongoing dispute with [Mr A] or that [Mr A] would seek to harm the applicant if he returns to Pakistan. The business arrangement was terminated 7.5 years ago and [Mr A] kept part of the money the applicant had invested. The applicant did not claim that he would seek to get this money back from [Mr A]. The Tribunal does not accept the applicant’s evidence that [Mr A] is waiting to implement an elaborate plan against the applicant, such as false blasphemy or other charges. [Mr A] did not attempt to harm the applicant for in the 5 month period he remained in Pakistan after the business arrangement ended in September 2017. He did not attempt to approach the applicant at his home.

12. In the 7.5 years the applicant has been in Australia, [Mr A] has not attempted to contact the applicant or his family. The Tribunal has considered the applicant’s explanation that [Mr A] is only interested in harming him, not his family. The Tribunal does not accept this explanation. If [Mr A] is an extremist, as the applicant claims, and remains committed to harming the applicant, the Tribunal considers that he would have at least made some inquiries about the applicant’s whereabouts and sought to obtain information about him through his family. At the hearing, the applicant had no knowledge about [Mr A] or his whereabouts, which further demonstrates that [Mr A] is not interested in contacting him if he returns to Pakistan. Given the significant passage of time and lack of contact from [Mr A], the Tribunal does not accept there is a real chance of serious harm from [Mr A] or any of his associates now, or in the reasonably foreseeable future, if the applicant returns to Pakistan.

13. The Tribunal has not accepted that the applicant actually received any threats from neighbours and the applicant did claim he was threatened by relatives because he had converted to Shi’a Islam. The Tribunal does not accept that there is a real chance of serious harm from neighbours or relatives now, or in the reasonably foreseeable future, if the applicant returns to Pakistan.

    Future harm due to false blasphemy charges

14. The applicant claims that he is more at risk of being targeted as he is a convert to Shi’a Islam rather than being born into the faith, and he may have false blasphemy charges laid against him as a result of his conversion.

15. DFAT’s 2022 Country Information Report on Pakistan states that Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations.[6] The Centre for Social Justice (CSJ) reported 200 blasphemy cases in 2020, an all-time high which has been widely linked to rising religious intolerance. Of these 35 were sentenced to death. Religious minorities are disproportionately affected: in 70 per cent of the cases the accused was Shi’a.[7] The Tribunal has also considered a 2020 Voice of America article provided by the applicant’s representative regarding blasphemy cases against the Shi’a community in Pakistan.[8]

    [6] DFAT Country Information Report – Pakistan at 3.58.

    [7] DFAT Country Information Report – Pakistan at 3.34.

    [8] ‘Blasphemy Cases Against Shiite Community Surge in Pakistan’, Voice of America (28 October 2020)

16. As the DFAT report is now 3 years old, and the Voice of America article is 5 years old, the Tribunal has also considered more recent data from the CSJ. In 2023, the CSJ reported that at least 329 persons were accused under blasphemy laws in Pakistan in 180 cases reported. Among these, 247 were Muslims and around 50% of Muslim victims (approximately 124 persons) belonged to the Shi’a minority sect.[9] Overall, the Tribunal considers these numbers to be relatively low, when placed in the context where the total population of Pakistan is approximately 241.4 million people.[10]

    [9] Centre for Social Justice (Pakistan), 'Human Rights Observer 2024. A fact sheet on key issues related to religious freedom and minorities' rights in Pakistan' (8 March 2024), CISNET reference 20240903065315.

    [10] Pakistan Bureau of Statistics 7^th Population and Housing Census 2023

17. When the Tribunal discussed this information with the applicant at the hearing, the applicant responded that regardless of the number of incidents, it is enough for one person to die and anyone can put a blasphemy charge on you. His situation is worse as he is a convert, not a regular Shi’a and regular Shia’s are dying in blasts on mosques.

18. Having considered the applicant’s response, the Tribunal does not accept that the applicant would be at risk of being accused of blasphemy. He indicated at the hearing that he would never say anything against the Prophet, the Koran or Islam or against Sunni Muslims. The Tribunal has found that the applicant would practise his Shi’a Muslim faith in a low-key manner, as he had done previously in Pakistan and as he has done in Australia. The Tribunal has found the applicant did not experience past harm in the 5 years he practised with other Shi’a people in Pakistan or following his conversion in August 2017.

19. The Tribunal acknowledges that false accusations of blasphemy charges can be used to settle personal disputes in Pakistan.[11] In this case, the Tribunal has not accepted that the applicant has any ongoing dispute with [Mr A] or that [Mr A] would seek to harm the applicant through false blasphemy charges if he returns to Pakistan. The business arrangement was terminated 7.5 years ago, and [Mr A] kept part of the money the applicant had invested. The applicant did not claim that he would seek to get this money back from [Mr A]. The Tribunal has not accepted the applicant’s evidence that [Mr A] is waiting to implement an elaborate plan against the applicant, such as false blasphemy or other charges. [Mr A] did not attempt to harm the applicant for in the 5 month period he remained in Pakistan after the business arrangement ended in September 2017. The applicant did not indicate that he had any personal disputes with other people that could give rise to false blasphemy charges against him.

    [11] DFAT Country Information Report – Pakistan at 3.34.

20. On the basis of this evidence, the Tribunal finds the chance of the applicant being accused of blasphemy is so unlikely as to be remote. The Tribunal finds there is no real chance of the applicant facing serious harm due to blasphemy charges.

    Future harm due to being a convert to Shi’a Islam

21. The applicant has also claimed that he is at increased risk of harm as a person who has converted from Sunni to Shi’a Islam.

22. DFAT has reported that:[12]

    ·     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.

    ·     Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them.

    ·     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. They can legally intermarry.  

    ·     Shias can pray in Sunni mosques and vice versa. Both sects also attend a number of famous religious sites, many of which are Sufi shrines.[13]

    [12] DFAT Country Information Report  - Pakistan at 3.55 to 3.61

    [13] Department of Foreign Affairs and Trade, DFAT Thematic Report – Shias in Pakistan (15 January 2016), CISNET reference CIS38A801265 at 3.3.

23. This information is consistent with the applicant’s experiences. In the applicant’s case, he was able to live in Pakistan for more than 5 years while associating with other Shi’a Muslims, attending Shi’a places of worship and Muharram events, and he did not experience any harm or discrimination during that time. Even if he had not formally converted at that time, others in the community may have believed that he was a Shi’a Muslim, given his regular association with other Shi’a people and the comfort he derived from the Shi’a faith following the death of his son in 2016. The Tribunal has found that the applicant did not experience discrimination or ostracization from his family due to his conversion. The Tribunal has found that if he returned to Pakistan he would practise his Shi’a faith in a low-key way. The Tribunal does not accept that he would be readily identifiable as a ‘convert’.

24. Even if he was identified as a convert, the Tribunal does not accept the applicant would face harm, given the way he would choose to practise his faith; the commonalities in the way Shi’a and Sunni Muslims practise Islam in Pakistan; and the large number of Shi’as in Pakistan. The applicant himself acknowledged that many Sunni people in [City 1] came to watch the Muharram procession and there were no difficulties in the area where he lived.

25. Independent sources[14] consulted by the Tribunal do not indicate any recent examples of increased risk of harm for people who had convert to Shi’a Islam, compared to those who  are born Shi’a Muslim. ‘Conversion’ itself does not involve any formal procedures or legal declarations.[15] The Tribunal notes that the Pakistan penal code does not explicitly criminalize apostasy, but renouncing Islam is widely considered by clerics to be a form of blasphemy, which may carry the death penalty.[16] As the applicant has not renounced Islam these penalties and circumstances do not apply to him.

    [14] These sources include: DFAT Country Information Report – Pakistan; European Union Agency for Asylum, Pakistan- Country Focus Country of Origin Information Report (17 December 2024) at 113-114; United States Department of State 'International Religious Freedom Report for 2023 - Pakistan' (26 June 2024) and CISNET.

    [15] Immigration and Refugee Board of Canada, Pakistan: The situation of Sunni Muslims who convert to Shi'ism; the procedure involved in converting, PAK100058.E (4 August 2005)

    [16] 'International Religious Freedom Report for 2023 - Pakistan', United States Department of State, 26 June 2024 at 7.

26. Overall, given the applicant’s circumstances, the Tribunal finds that there is no real chance of the applicant being accused of blasphemy or of serious harm due to having converted to Shi’a Islam.

    Future harm due to attacks by terrorist organisations

27. The Tribunal acknowledges the DFAT report which states that that Shi’a have been historically targeted by sectarian groups operating in Pakistan, such as LeJ and other terrorist organisations such as the TTP.[17] 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.

    [17] DFAT Country Information Report - Pakistan at 2.39 and 2.41.

28. DFAT also reports that the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani, military and other government representatives.[18] Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a 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.

    [18] DFAT Country Information Report – Pakistan at 2.40

29. DFAT assesses that overall, Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a (such as Hazaras, Turis and Bangash), face heightened risks. [19] DFAT assesses a ‘moderate risk’ is where DFAT is aware of sufficient incidents to suggest a pattern of behaviour.[20] The Tribunal notes that a ‘moderate risk’ does not necessarily equate with a ‘real chance’ or a ‘real risk’ and the Tribunal must consider the applicant’s particular circumstances.

    [19] DFAT Country Information Report – Pakistan at 3.61.

    [20] DFAT Country Information Report – Pakistan at p.6.

30. As the DFAT report is more than 3 years old, the Tribunal has also considered more recent information. The Pak Institute for Peace Studies (PIPS) Pakistan Security Report 2024[21] reported a 70% increase in terrorist attacks in 2024 – 521 attacks claiming 852 lives, reflecting a 23 per cent increase compared to the previous year. However, when these figures are broken down, there were relatively few attacks against Shi’as - 4 attacks against Shia religious scholars and community members in 2024, killing 53 and injuring 20. Most of these fatalities occurred in a single incident in Kurram, Khyber Pakhtunkhwa (KP) province where 50 people were killed.[22] There were also 6 attacks against Sunni religious leaders and community members. The majority of terrorist attacks were against security and law enforcement agencies (308 attacks).[23] Although terrorist attacks were recorded in all four provinces and the federal capital in 2024, over 95% of them were concentrated in Khyber Pakhtunkhwa and Balochistan.[24] Punjab experienced 11 terrorist attacks.[25]

    [21] Pak Institute for Peace Studies (PIPS) Pakistan Security Report 2024 – at 1.1

    [22] bid at p 24

    [23] ibid at Table 1

    [24] ibid at p 6

    [25] ibid at Table 2

1. In 2023, PIPS reported that out of 306 attacks, there were 5 attacks against Shi’a religious scholars and community, killing 18 people, and 8 attacks against Sunni religious leaders and community.[26] About 93 percent of the total recorded terrorist attacks in Pakistan in 2023 were concentrated in KP and Balochistan provinces. Punjab had 6 attacks.[27] DFAT has also reported that Shi’as are dispersed throughout Punjab and are generally more integrated with Sunnis in larger cities such as Lahore. Levels of generalised violence remain lower in Punjab than other parts of Pakistan.[28]

   [26] Pak Institute for Peace Studies (PIPS) Pakistan Security Report 2023 – at Table 1.

   [27] ibid at p 16

   [28] Department of Foreign Affairs and Trade, DFAT Thematic Report – Shias in Pakistan (15 January 2016) at 4.19-4.20.

100.   When the above information was put to the applicant at the hearing, the applicant stated that while group violence is decreasing, incidents are still occurring against individuals. He believes he will only feel safe when there are zero incidents of violence in Punjab. Case law, however, has established that a ‘real chance’ or does not mean a zero per cent chance of an event occurring. A ‘real chance’ is a substantial chance, as distinct from a remote or
far-fetched possibility.[29]

[29] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 406-7, 396-8, 428-9

101.   The Tribunal has considered the articles provided by the applicant’s representative regarding terrorism activities and sectarian violence in Pakistan. Most of these articles are general in nature and refer to incidents in the North-Western provinces of Balochistan and KP or relate to general articles about the apparent rise of the TTP. As stated above, the Tribunal acknowledges that the incidents of violence are higher in the North-Western provinces, but they are not the areas the applicant would return to. The Tribunal prefers the independent information referred to above which is detailed, recent, from credible sources and relates more directly to the applicant’s circumstances of being a Shi’a in Punjab who does not work in law enforcement.

102.   The representative has provided one article about an attack against Shi’as in Sialkot, Punjab in 2022[30] and another in Bahawalnagar, Punjab in 2021[31] during Muharram events. These events are consistent with DFAT’s assessment that there is a moderate risk of sectarian violence faced by Shi’as in Pakistan and tensions can flare during Muharram.[32] However, the Tribunal does not accept that these incidents are indicative of an increasing trend in violence against Shi’as in Pakistan, particularly in Punjab.

[30] ’13 injured as radical Islamist group attacks Shia procession in Pakistan’, The Hindu (18 September 2022) 13 injured as radical Islamist group attacks Shia procession in Pakistan - The Hindu

[31] ‘Bombing hits Shia procession in Pakistan, killing at least 3’, The Hindu (19 August 2021)

[32] DFAT Country Information Report – Pakistan at 3.59.

103.   Overall, the Tribunal finds the above information indicates that reported terrorist attacks on Shia’s are relatively few, the majority of terrorist attacks are concentrated in KP and Balochistan provinces, and that Hazara Shia’s are more at risk of harm.

104.   The Tribunal acknowledges that the applicant may choose to participate in Muharram events. DFAT reports that sectarian tensions often flare during Muharram but 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.[33] In 2023, the US Department of State reported that authorities provided enhanced security for Shia Muslim, Christian, and Hindu places of worship at various times throughout the year, including around religious holidays or in response to specific threats. Police also increased security for Christian and Shia Muslim places of worship in Punjab.[34] As stated above, PIPS has reported that there were 4 attacks against Shi’as in 2024 and 5 attacks in 2023, which is a relatively small number, considering the overall population of Pakistan.

[33] DFAT Country Information Report – Pakistan at 3.59.

[34] United States Department of State, 'International Religious Freedom Report for 2023 - Pakistan' (26 June 2024) CISNET reference 20240702110820 at 25-26.

105.   The Tribunal now considers the applicant’s particular circumstances in light of the above country information. In the applicant’s case, he acknowledged that Muharram processions were held in his hometown of [City 1], with other Sunni Muslims observing the procession in a peaceful way. Some Wahhabi Muslims did not like the procession going through their streets so the event was diverted. The applicant participated in 2 Muharram events in Pakistan without incident. Given the country information and the applicant’s particular circumstances, the Tribunal finds the chance of the applicant being harmed in a Muharram event to be remote.  

106.   The Tribunal finds that the applicant’s particular profile is a person who would practise his faith in a low-key manner; would live in Punjab province; would be supported by his family in practising his faith and is not physically or linguistically different from Sunni Muslims. The Tribunal finds that given this profile, the risk of any violent attacks from the TTP, the Taliban or other extremists groups against the applicant because he is a Shi’a Muslim, or a convert to Shi’a Islam, is remote. The Tribunal finds therefore, there is no real chance of random or targeted attacks against him as a Shi’a Muslim or as a convert to Shi’a Islam.

Cumulative consideration of claims

107.   The Tribunal has considered the applicant’s accepted claims individually and cumulatively. He is a [age]-year old married man who would practise as a Shi’a Muslim if he returned to Pakistan. Having considered the evidence as a whole, the Tribunal does not accept that the applicant faces a real chance of serious harm if he returns to Pakistan, now or in the reasonably foreseeable future, because of his religion as a Shi’a Muslim or because he is a convert to Shi’a Islam.

1. Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act and he does not meet the refugee criterion in s 36(2)(a) of the Act.

   Does the applicant satisfy the complementary protection criterion for protection?

109.   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) – that is, 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 he will suffer significant harm.

110.   The Tribunal has considered the claimed harm due to the applicant being a Shi’a Muslim or a convert to Shi’a Islam. The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test and its findings that the applicant would not face serious harm due to his religion if he returned to Pakistan. A ‘real risk’ and ‘real chance’ involve the same standard.[35] For the same reasons, the Tribunal does not accept there is a real risk of significant harm to the applicant. That is, the Tribunal does not accept: that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment (under s 36(2A) of the Act).

[35] MIAC v SZQRB (2013) 210 FCR 505.

111.   For the reasons set out above, the Tribunal is not satisfied, on the evidence, that 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 he will suffer significant harm. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.

Conclusion

112.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

   DECISION

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

Date of hearing:  27 February 2025

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.

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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.

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5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

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5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(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.

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