2108730 (Refugee)

2108730 (Refugee) [2022] AATA 2455 (23 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Emma Mulrooney
CASE NUMBER: 2108730

COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:23 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 June 2022 at 12:20pm
CATCHWORDS
REFUFEE – protection visa – Pakistan – religion – Shia – particular social group – woman – education – societal discrimination – fertility issues – family expectations – workplace harassment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 June 2021 to refuse to grant the applicants’ protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim, and I accept, to be citizens of Pakistan, applied for the visas on 15 July 2018.
In the application form the first named applicant provided the following description of the harm she feared:
I experienced mistreatment throughout my life in both School and College life as well as in the practical life when I was Teaching Students in a school. The mistreatments and bad language was used against me because we organize religious gatherings at our house in Karachi.
The mistreatments were so severe that I even had to change my school to escape from the torture but as I grew up and made friends, even they shared the same animosity against my belief. One of the instances that happened to me in 2017 was that one of my college fellows who belongs to Sunni Muslim family spit in the meal and served me and it was witnessed by one of my close friends who was also a Sunni.
This is not only one incident that happened to me. The people responsible for causing the harm were the Sunni Muslim people in the normal society They subjected me to ill treatment due to my belief in Shia Islam.
In assessing the application, the delegate referred to country information on the situation facing people of the applicant’s profile and found that her claims did not amount to a well-founded fear of persecution nor that they triggered Australia’s protection obligations under Complementary Protection.
At the application stage the second named applicant did not have claims of his own.
The applicants appeared before the Tribunal on 17 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were represented in relation to the review.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
Background
The applicant is [an age]-year-old Shia Muslim from Karachi. She married the second named applicant in 2017. Her father works in a [business 1], her mother as [an occupation 1] when the family needs additional income but otherwise, she stays at home, and her brother is studying [a course].
The second named applicant’s father is [retired], his mother a housewife. Also living with his parents in the same home are his uncle and aunt who are both retired, the former [an occupation 2] and the latter [an occupation 3], as well as [specified family members]. The house is a three-bedroom house. After the applicants were married, they stayed at the house for fourteen days sleeping in the living room.
Both applicants stated that they would be considered middle class. Based on their claims and evidence including the stature of the positions held by their family members, I accept that they are middle class.
Prior to coming to Australia, the first named applicant obtained a job for four months through her study mentor working as a substitute teacher. When her study mentor first asked her about taking up the role, she feared that her father wouldn’t allow it so the applicant asked her to approach her father on her behalf. As the study mentor was known to the family for many years, her father allowed her to undertake the work.
The second named applicant worked for two years as a trainee [in a specified role] and then two years as [an occupation 2]. He said that he had obtained one job through a friend and the other through his family.
I accept as fact the above narration of the applicants’ family and work history.
Past experiences of discrimination and harm as Shia Muslims
Despite the second named applicant not putting forward any claims, for the reason that he is Shia, and the first named applicant has put forward claims of fearing harm arising from her beliefs as a Shia, I have also taken evidence from the second named applicant regarding his experiences as a Shia.
The first named applicant is a practicing Shia. She wears her mourning clothes during Muharram, she celebrates both Eids, attends family hosted majlis (religious gatherings), fasts during Ramadan, undertakes niaz, attends Iman Bargah, celebrates relevant days of the Imams and participates in Ashura processions. She said that in Pakistan there are regular Shia events that require her attendance more often than in Australia.
The second named applicant said that he rarely goes to religious events, although he is still a practicing Muslim. He recalls being present in 2009 when there was an attack against Shia, though he said that he wasn’t a ‘close contact’.
The first named applicant wrote in a statement of claims that at school she suffered because of her faith including that a classmate called her ‘kafir’, she was bullied, bad words were cast her way and was physically harmed. She said that she moved schools because of a bully. In her new school she did not encounter the same harassment.
She claims that Pakistan education curricula includes only Sunni teachings and as a result is portrayed as being the mainstream. She wrote that she felt embarrassed about her Shia practices and felt that she was not a Muslim.
This attitude, she recalled, continued into her employment by way of a sudden change in attitude towards her when it became known that she was Shia including that they started ignoring her in ‘various daily tasks and reduced the coordination significantly.’
Socially, she said that some acquaintances disrespected her for her faith. She claims that at one point in the past an acquaintance spat in her food.
The applicant recalled her childhood as being one defined by segregation between men and women. She claimed that she was treated differently by her parents than her brother. She attended a school where the boys and girls were separated. She said that she was not allowed to be friendly with male cousins whereas her brother could visit them. She wrote of how since her childhood she has had to wear a hijab and would be punished by her father if she took it off.
The applicant wrote, ‘My friends used to ask me why I do not visit their homes because even their parents feel strange about it and they think that my parents do not trust anyone then why they should trust my parents. But my younger brother was allowed to hang out with his friends whether male or female.’
Both said that they do not publicly speak out about their faith. The first named applicant said that she rarely shares religious posts on Facebook and otherwise does not have a public voice on matters of religion other than when someone asks about her faith. Similarly, the second named applicant said that he has not made his voice heard publicly on religion.
Past experiences of societal discrimination and harm as a woman
The applicant described her friend’s and her own experiences of sexual harassment. She said that once she felt a man touching her back and despite shouting at him no one came to help her. Instead, he verbally abused her. At the hearing she said that this was the only such incident in her experience in Pakistan. She also described another situation when riding on the back of her father’s motorbike. In this instance, she said that some boys had driven by on their motorbikes and had signalled her with rude gestures.
She wrote that her friend was once groped by two boys on a motorbike who then ran away.
Direct pressure from the families
The first named applicant explained how she felt constrained by her parents in Pakistan who would enforce a norm of respect towards elders. She thought things would change after she was married but instead found that her in-laws were equally imposing upon her, particularly in pressuring her to have a child. She said that before her marriage she had told her husband that she wanted to continue her studies but after the marriage the pressure began nevertheless. She said that even when she turned to her parent’s, they told her to listen to her in-laws.
The applicant’s concerns about the influence of the family and cultural expectations of Pakistani society extended its influence to Australia. She claims that she felt pressured to have children and that her husband did not protect her from the imposing in-laws. She claimed that her parents pressured her to abide by the dictates of her in-laws and that to facilitate their desires for her to be pregnant she saw a doctor who diagnosed her and then provided some medication that had severe side effects requiring her to be hospitalised and as a result she chose to stop taking the medication. She claims that this led to her in-laws calling her names and harassing her parents.
The applicant said that they started trying to get pregnant in mid-2020 and then after receiving medical advice to lose weight to overcome the infertility, she dropped considerable weight by early 2021, but then she still did not get pregnant and then she started to gain weight again. She told the Tribunal that a doctor said that this weight gain could be because of her condition.
I asked what made her believe that her husband’s family would be violent towards her. She said that they are aggressive on the telephone and blame her for many things saying that she has a bad character. She added that her husband had told her stories of how the children while growing up were physically chastised. She said that slapping is very common in Pakistan.
The applicant described her own upbringing in ways that could be described as conservative with her father restricting her movements, her freedom and her choices with regards to what she studied and having to wear a hijab.
The second named applicant said that he had been slapped as a child through to when he was about 17 or 18 years of age. He said that it stopped because he started to comply with what his parents said. He said that his elder brother who lives with his parents still gets slapped or pushed by them, which he also described as being ‘not that much harm’.
I find the applicants credible and as such accept the history and evidence provided of their past experiences. I now turn my mind to considering their claimed fears arising from this evidence.
Considerations
Fear of harm arising from her in-laws
The applicant has specific fears of her in-laws. She fears being disciplined by her in-laws including being slapped, pushed and spoken to in a demeaning way. She fears that they would force her husband to take a second wife because of her claimed infertility and that her infertility would lead to a weakened position vis-à-vis the in-laws. She fears that they will not allow her to go out without an accompanying male. She fears that if she went back to Pakistan that she would be forced to take medication against her wishes to treat her infertility.
The husband is [age] years old. I asked him at what stage will he stand up to his parents to tell them to stop interfering in his life. He said that he has told them multiple times, but he has to be respectful to them. He said that he can’t be disrespectful as he believes that it’s not right according to his culture. I put to him that the consequence of him not standing up is that his wife will face harm. He said that it’s not about standing up but balancing their concerns as well. I put to him that ultimately there will come a point where he will have to choose between his parents and his wife such as when they insist on him getting a second wife or when his wife is saying that she needs to have privacy in a house. He said that he is doing whatever he can to protect her but also acknowledged that he would look for an apartment to live in to ensure that his wife has privacy and that he would push back against his parents if they continued to demand that he finds a second wife.
I first turn my mind to consider what type of harm the first named applicant may face from her in-laws upon return to Pakistan. Were they to choose to live in the in-law’s house, a question which I will address further below, I accept that she would face a similar level of harm as her husband did when he was younger and as his brother does now, namely being slapped and/or pushed on occasions along with derogatory or demeaning language being directed at her. I find that the level of harm will not be higher because there is no past indication of the in-laws resorting to any greater level of harm, that the second named applicant has said that he will stand up to his parents in situations where he has to protect his wife from harm and lastly, because the applicants will have the ability to threaten to move out of the home and this will mitigate the parent’s actions. For the same reasons I find that the regularity will be infrequent.
I accept that repeated or forceful slapping to certain individuals can amount to serious or significant harm. But I find in the specific circumstances of this case that the slapping and pushing described by the second named applicant including that it amounted to ‘not that much harm’ and the derogatory language or demeaning language described by the applicants does not amount to serious or significant harm and as such the first named applicant does not face a real chance of serious harm or a real risk of significant harm from her in-laws.
The first named applicant also fears being forced into taking medication to remedy her infertility. The first named applicant also fears that her husband will be forced to take a second wife. In both cases the feared harm could be mitigated by the actions of the second named applicant. He has acknowledged that in situations where he has to choose between his parents and his wife, he will choose to protect his wife. To protect her this may mean pushing back against his parents or breaking ties with his parents and establishing a safe place for his wife and him to live. I find that by the second named applicant doing as he has said he will, namely standing up to his parents when living with them or immediately upon return moving into a separate rental, then the first named applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia arising from a desire of the in-laws for her to take infertility medication.
I now turn my mind to consider the possibility of the applicants returning to Karachi but living in their own property (or using this as a real threat) and whether there are any consequences that arise as a result of this course of action being taken which could trigger Australia’s protection obligations.
I note that in doing so moving into a separate rented home upon return to Pakistan or threatening to move into such a place is not ‘relocating’ in the sense of SZAT v MIAC[1] or s 36(2B)(a) as the applicants will return to the same area that they had lived in previously. The relocation test is not focused to a particular house and even were it to be, they have not lived with the in-laws other than staying for a 14-day period after their wedding when they were sleeping in the living room.
Risk of harm arising from living separately from the in-laws
[1] SZATV v MIAC (2007) 233 CLR 18
The first named applicant said that they can’t buy their own house. She said that they couldn’t rent because they are Shia. Her experience of the rental market is through her parents who are looking for a place, but they have had problems with landlords who, she believes, once they learn that they are Shia don’t rent to them. I put to her that there would be many Shia landlords in Karachi which has a large population of Shia.[2] She said that most of the places available for rent are not apartments, but she added that renting an apartment can be expensive. I put to her that it depends upon what type of apartment, she acknowledged that this could be the case. The second named applicant added that renting is difficult for Shia. He acknowledged that they have not tried to find accommodation, but their concerns are based upon the experiences of the first named applicant’s family.
[2] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 2022 at [3.55]

I put to them that if someone needed to find an affordable home then they would accept what is available. The first named applicant said that it would be difficult, and it would take time to find a place. She added that her in-laws won’t want them to move away from them, so they won’t agree to it. She believes that once they are living with the in-laws that her husband is very easily influenced by his parents. She believes that his parents will obstruct any effort to rent a separate apartment.
She believes that she would still not be protected from her in-laws even if they moved out as they could come to her rented place. She said that they could come and make a scene in front of the landlord and that it is possible that the landlord would ask them to leave.
I now turn my mind to consider the scenario of the applicants’ not moving into the in-law’s house upon return to Pakistan or once in the house using a real threat to move out to mitigate the harm the in-laws would be willing to impose on the applicants.
In such scenarios they could find a place to rent. The applicant’s said that it would take time. I accept that it would take time to find the right place to rent, but as a temporary measure I do not accept that the applicants could not find any place to provide a safe and habitable space until they found the right place.
The applicants also said that they fear harm arising from the social opprobrium from separating from the in-laws. They claim that they will not have family support on which they can rely upon and that this will inhibit their future including their ability to find work through to their standing in society.
I put to the applicants that country information states that 5% of households in urban Sindh have two members and another 10% have 3 which would include a portion of single child household (as well as a portion of single extended family member).[3] I put to them that this indicates that it’s not unique or socially unacceptable and as such there would not be the loss of social standing. The first named applicant said that those would have received their parent’s consent to leave the family home, or some would be those who came from other areas.
[3] Pakistan Bureau of Statistics, ‘Household integrated economic survey 2018-2019’
The representative argued that such data could be representative of Sunnis and not Shia. I note that country information discussed at the hearing states that there are significant Shia populations in Karachi.[4] The above data references ‘urban Sindh’ which is overwhelmingly Karachi. The report does not disaggregate the data based upon religion. The publisher of the data is the Pakistan Bureau of Statistics. I am satisfied that if the PBS identified anomalies in the data that skewed towards religious clustering then the data would have been further disaggregated. As it has not been, I am satisfied that it is representative of the general situation of inhabitants of urban Sindh as title suggests.
[4] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 2022 at [3.55]
I accept that having broken relations with the in-laws will lead to some diminishment in their ability to start a fruitful life together in Pakistan and possibly some degree of loss in social standing. It will be harder without family support than with it. I accept that some questions will be asked by neighbours or friends. But noting that there is a substantial portion who live separate from their families, that both applicants obtained work through their own contacts in the past and that in considering all of the possible combinations and permutations of the type of harm including a loss of social standing that would arise from living separate from the in-laws and being known for having broken relations with the in-laws, I find that in no circumstance does the harm rise to serious or significant harm and therefore I find that the applicants do not face a real chance of serious harm or a real risk of significant harm for these reasons.
The applicant also said that they would not be able to afford living on their own. They provided a detailed breakdown of costs. They wrote, ‘Following is the income and expense break-up of a household with 2 people, assuming both [the applicant’s husband] and [the applicant] work and [she] discontinues her studies and both do not participate in any social life or outings.’ The table showed a monthly income of Rs 50,000 and once expenses were taken out including rental, it left them with a monthly deficit of Rs 230. I note that the level of income assumed is acknowledged to be a conservative estimate. As such a Rs 230 deficit, I find to be manageable by way of finding cheaper options including alternate rental or reassessing other regular expenses.
It is not in dispute that they would be able to find work. The issue lies in the adequacy of pay. While poverty would not normally be considered to have a refugee nexus or the necessary intentionality for Complementary Protection, in this case the persecutors are the in-laws whose actions could lead them into harm in the form of poverty. In considering whether living on their own could amount to serious or significant harm, in accordance with their own calculations, I find that it does not indicate a level of harm that would amount to serious or significant harm and as such that the applicants do not face a real chance of serious harm or a real risk of significant harm.
The first named applicant said that she wanted to pursue her ambitions such as studying further but she wouldn’t be able to if she had only sufficient funds to pay for necessities. I agree that this would be unfortunate for her but in her specific circumstances I find that foregoing an ability to pursue higher education does not amount to serious or significant harm and therefore that the applicants do not face a real chance of serious harm or a real risk of significant harm from their economic situation.
By being able to move out into their own home I am satisfied that any threat arising from the in-laws would not rise to the level of serious or significant harm. While the applicant said that she would fear the in-laws finding them, approaching their landlord and making a scene or another act so that the landlord would ask them to leave, I find the chance of this sequence of events occurring to be remote and as such there does not arise a real chance of serious harm or a real risk of significant harm.
Female as a member of a particular social group
The applicant has broader fears as a female in Pakistani society. As noted above the applicant has experienced on one occasion unwarranted groping and on another some sort of signalling that was offensive.
With regards to the situation of women in general in Pakistan, the legal representative’s submission included extracts from the 2019 DFAT report[5]:
According to the World Economic Forum’s 2017 Global Gender Gap Report, Pakistan ranked 143 out of 144 countries, behind Syria (142) and ahead of Yemen (144), for female economic participation and opportunity, educational attainment, health and survival and political empowerment.
Women and girls in Pakistan are subject to rights based violations such as, but not limited to, gender based violence including (so called) honour killings and acid attacks, cruel, inhumane and degrading treatment by traditional justice systems called jirgas (see Cruel, Inhuman or Degrading Treatment or Punishment , early and forced marriage (see Children and Hindus), kidnapping and bonded labour.
DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Women who are economically disadvantaged, culturally or geographically isolated are particularly vulnerable, and lack access to support services.
[5] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 2019 at [3.199], [3.203] and [3.216]
The submission also included references to the most current 2022 DFAT report including:
DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex… Rates of gender-based violence are high.[6]
[6] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 2022 at [3.100] and [3.93]
I note, though, that the DFAT information is high level and generic making sweeping statements about women across all of Pakistan, a diverse country of 230 million people, regardless of social status, economic empowerment or cultural and religious background. Other country information provides a more nuanced understanding such as the UK Home Office report:
2.4.3. Women in large urban areas such as Lahore, Karachi and Islamabad often can actively participate in society, i.e. are able to access education, employment and health services, socialise and travel, without a male chaperone
2.4.5. The level of societal discrimination against women, particularly those from higher socio-economic backgrounds, is not, in general, sufficiently serious by its nature and repetition that it will reach the high threshold of being persecutory or otherwise inhuman or degrading treatment. However, each case must be considered on its facts and may differ according to the woman’s religion or ethnicity.
When this information was put to the applicants, the first named applicant responded by saying that she has seen women travelling alone on public transport, but she said that it is risky to go alone. With regards to the class difference implicit in the above statement the applicants disagreed and said that they do not see a difference in how women are treated in society, within the family and among the community. She said that while there may be some who treat women correctly, she doesn’t think that there is a difference across classes.
The applicants are from Karachi. They are of a mid-level socio-economic background by their own account but also by their education and family background. The applicant’s own experiences and those of her friends suggest that the UK Home Office reporting is more accurate of the specific circumstances that the applicant will encounter upon return than the generalisations in the high level DFAT report. Based upon the applicants own past experiences and the UK Home Office report, I find that as a woman the applicant will not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
The applicant also expressed concerns over social harm as a result of her infertility. She fears harm arising from being perceived to be a married woman subverting gender roles by not having children.
While it is questionable whether the applicant is actually infertile, as her own evidence of attempting to become pregnant following the advice of her doctor to lose weight left only a limited period of time, and other information put to her suggested that the condition is not necessarily permanent, I give her the benefit of the doubt and accept that it is a condition that will last into the reasonably foreseeable future.
A considerable amount of well researched country information was provided by the applicant’s lawyer relating to the lived experiences of infertile women in Pakistan. The evidence included research papers and newspaper articles.
Representative of the research submitted were findings (references were provided in the submission) that the societal pressure included verbal abuse, exclusion, social stigma and lower social status. The references to physical violence that was included in submissions, when the original source material was consulted, showed that it was always from within the family (see for example ‘The perpetrators were either the husbands or their family members’ p16 of the reference found in footnote 19 in the representative’s submissions).
In considering the circumstances of the applicant regarding her inability to produce children into the reasonably foreseeable future, I find that the societal pressures shaped by cultural norms would not lead to any harm rising to the level of serious or significant harm and therefore that the first named applicant does not face a real chance of serious harm or a real risk of significant harm from the wider society for reasons of her infertility.
I have also considered the impact upon the second named applicant were he to remain childless despite the applicant not raising his own claims. I note that country information submitted by the representative states that ‘men only experienced minor taunting from friends.’ (p9 of pre-hearing submission). Based upon the second named applicant not raising a claim and the material submitted by the representative showing that men face minor taunting, I find that the second named applicant does not face a real chance of serious harm or a real risk of significant harm arising from being childless.
Being Shia
Country information on Shia in Pakistan notes that there are ‘significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad.’[7] When this was put to the applicants at the hearing, they agreed that it is true.
[7] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 2022 at [3.55]
I asked the first named applicant what type of harm she anticipates were she to return to Pakistan. She said that she doesn’t expect to go to work, but if she does, she would encounter harassment because her clothes during months such as Muharram would indicate that she is Shia. She said that she would be demeaned, not get promotions, be treated unwell, people would speak behind her back and that she would hear ridiculous rumours that some people believe such as that Shia spit on their food or that they practice incest.
The second named applicant said that it is common to encounter discrimination in jobs. He said that the type of discrimination he anticipates is questioning his faith or bringing up discussions about faith for no reason or being demeaning about his faith.
While I accept that into the reasonably foreseeable future the applicants would face some harassment in the form of the descriptions provided above, I find that this sort of workplace harassment does not amount to serious or significant harm and therefore that the applicants do not face a real chance of serious harm or a real risk of significant harm for these reasons.
The applicants were also concerned about being attacked by Sunni extremists as members of the Shia community.
I accept that there are attacks on Shia by Sunni extremists, particularly, during the Muslim month of Muharram but that ‘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.’[8] When this was put to the applicants at the hearing, the first named applicant said that the authorities do those things, but only during major events, but otherwise religious sites are not secure.
[8] Ibid [3.59]
I noted that country information indicates that ‘Terrorist attacks targeting Shi’a killed five and injured 14 in 2020…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.’[9] I noted that this showed an improved security situation in part arising from the security measures put in by the Pakistani security forces. The first named applicant said that it fluctuates, sometimes it appears to be getting better, but then the situation can turn around. She said that on occasions there is open antagonism by religious leaders against the Shia and that this creates an adverse sentiment towards Shia in the community.
[9] Ibid [3.60]
I also acknowledge the country information the applicant provided during the Departmental application including a Pew Research poll showing that 37% of Pakistani Muslims believe that Shias are non-Muslims. I have also viewed the videos and read the articles that were submitted and note that the statistics provided are dated relative to the latest DFAT report.
I put to the applicants that the risk of them being in the wrong place at the wrong time, meaning that they are at a place where a Sunni extremist has decided to conduct an attack against Shia, is very low. The first named applicant said that she is neutral about such an assessment, she said that maybe the risk is not there but there is constant pressure on her mind that she will be harmed or that her husband will be harmed.
I find that the risk of the applicants being present when a Sunni extremists attacks Shia is remote based on the applicants’ past experiences and the country information and as such, I find that neither of the applicants faces a real chance of serious harm or a real risk of significant harm.
We discussed the Pakistan government’s blasphemy laws. I noted that the UK Home Office finds that ‘Relative to the overall number of Shias in Pakistan, the risk of being accused and charged with blasphemy is, in general, very small.’ In response to the UK Home Office view of the risk being small, particularly in cities such as Karachi where there is a large population of Shia, the first named applicant said that she disagrees with that statement. She said that Shia are already targeted by imams who say that they are not Muslims and as such everyone who is Shia is potentially targeted.
I acknowledged to the applicants that country information does indicate that there is a prejudice against Shia, noting the following DFAT information:
3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a.[10]
[10] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 2022 at [3.58]
I explained that the question before me was whether they have a particular profile that would raise their exposure such that they would face a real chance of serious harm or a real risk of significant harm. She said that she fears people with whom she would interact with could report her as blasphemous. I put to her that she could use the blasphemy law to harm a Christian or a Hindu. She said that she would never do that. I asked why she thought that the people she would be talking to would do it to her? She said that many people believe that it is a rightful thing to do if your religious beliefs are being attacked.
The first named applicant’s name is, ‘[name]’. She claimed that this name may lead some to believe that she belongs to [a named] sect within Shia Islam. Despite being asked what type of harm she fears arising from her religion and who would cause her harm, the applicant did not provide any evidence or make any claims at the hearing that being associated with [this] sub-sect would lead to harm. I note that the type of past harm that she had described in written submissions or at the hearing was not claimed to have arisen because of her name or any inference that she is of [this] sect. She had clearly articulated the harm she feared for reasons of her religion was from Sunnis because she is Shia. I note that country information does not indicate that being a sub-sect within Shia Islam would cause any harm other than being identified as Shia.[11]
[11] I have looked at the DFAT report, CISNET, Google and Refworld
Overall, I find that the risk of the above-mentioned types of discriminatory behaviour occurring to the applicants including someone wielding the blasphemy laws against them or general intolerance such that it amounts to serious or significant harm is remote. As such I find that the applicants do not face a real chance of serious harm or a real risk of significant harm for reasons of their faith.
Other considerations

As the first named applicant has graduated from high school, I find that the school curriculum or her experiences while at school are indicative of the wider societal context but are not circumstances into which she would be returning to and as such have not considered them.
The first name applicant has not made any claims of feared harm arising from her parents. The circumstances to which she would be returning to do not include the possibility of returning to her family’s home and as such I have not considered this further.
Noting that the secondary applicant’s family are the feared persecutors and that the second named applicant has acknowledged that he would take certain steps to protect his wife from harm including standing up to his parents and not moving into their home, I now turn my mind to consider whether he would face any harm because of these actions.
The applicant has described the harm he has faced in the past at the hands of his parents and the type of harm his brother has faced. This has included slaps and pushing, which he described as being not much harm. In addition, the second named applicant said that her husband would be humiliated by others for not living in the joint family household.
While I accept that these circumstances amount to harm, I find that they do not reach the level of serious or significant harm and as such find that the second named applicant does not face a real chance of serious harm or a real risk of significant harm for the reason of standing up to his parents and taking steps to protect his wife from them.
Cumulative considerations
The first named applicant’s circumstances include a fear of harm from her in-laws arising from her apparent infertility, society in general for the same reason, as well as the wider community for reasons of her faith.
In considering the circumstances to which she will be returning to I have turned my mind to situations that have a compounding effect, for example, the applicant having to rent due to the harm she fears from her in-laws but that she would find landlords unwilling to rent to Shia. In considering the applicant’s profile and individual claims cumulatively I find that the first named applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
The second named applicant also has multiple risk factors including being Shia and having his parents harm him for his stance and possibly face humiliation socially. When considered cumulatively I am satisfied that he does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Denis Dragovic
Deputy President

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.
…

[2022] AATA 2455

23 June 2022

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