2207858 (Refugee)

[2023] AATA 2311

2207858 (Refugee) [2023] AATA 2311 (6 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2207858

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:6 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 March 2023 at 11:55am

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – religion – Shi’a – perceived Sunni fraternising and sympathising with Shi’a – particular social group – persons perceived in Pakistan to be rich – credibility concerns – diagnosed with dementia – inconsistent evidence – voluntary returns to Pakistan – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are a married couple who are citizens of Pakistan. They arrived in Australia [in] May 2011. They both departed Australia for Pakistan [in] July 2023 and re-entered Australia in mid-2012. They variously departed Australia a number of times, separately or together, in 2012, 2013 and 2014. The last time they both arrived in Australia was [in] March 2014. They remained here on bridging visas until a medical treatment visa was issued on 21 August 2015. That visa was valid until 9 October 2015. The applicants lodged their PV application on 8 October 2015, around 19 months after their last entry into Australia, having returned to Pakistan at least three times each since May 2011.

3. The delegate refused to grant the visas on 15 April 2016.

4. The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Court.[1] The matter is now before the Tribunal pursuant to an order of the Court.

   [1] [Case citation redacted] 

5. [The first named applicant] appeared before the Tribunal on 13 February 2023 to give evidence and present arguments. He was accompanied by one of his sons for social support. The Tribunal hearing was facilitated by an interpreter in the Urdu-English medium.

6. For the purposes of the Tribunal’s review, the applicants submitted a copy of the delegate’s decision in this matter. It contains a useful summary of the applicants’ claims as well as  details of relevant issues and concerns raised at the PV interview.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

8. 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.

9. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

11. 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

12. In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    The issues

13. The key issue in this case is whether, on accepted evidence, the applicants are entitled to Australia’s protection as refugees or, if not, on complementary protection grounds.

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

    Claims to the Department

15. [The first named applicant] is the main applicant in this case. [The second named applicant] has made no claims of her own. In the original PV application, [the first named applicant] claimed to be a “Muslim (not officially Shia)” and [the second named applicant] claimed to be a Muslim.

16. [The first named applicant] claimed to be a retired [Occupation 1] from Karachi, Pakistan. He claimed he and [the second named applicant] are married and have [number] children:  [number] sons and one daughter in Australia; one son in [Country 1]; and a son in Pakistan. He claimed fear of harm from the Taliban.

17. [The first named applicant] claimed to have converted from Sunni Islam to Shia Islam in 2011. He claimed his conversion was influenced by the charitable work of the late [Mr A] who was the best friend of his eldest son, [Child B]. He claimed that [Mr A] was killed in 2011 by the Taliban because of his services to the Shi’a community’s poor and orphans. He claimed he received threats by telephone because of his associations with the Shi’a community. He claimed that in 2012 his eldest son, [Child B] was kidnapped by the Taliban and held for ransom for about 4 to 5 days. [The first named applicant] claimed a younger son was kidnapped in September 2015, his whereabouts still unknown.

18. [The first named applicant] claimed he cannot obtain police protection and cannot relocate because Pakistan is not safe anywhere.

19. The applicants attended a Protection visa interview on 27 January 2016. For the purposes of this review, they have submitted a copy of the delegate’s decision which includes a summary of claims made at interview along with descriptions of relevant issues raised.

20. [The first named applicant] told the delegate he is an ethnic Kutchi from Karachi, Pakistan. He said his eldest son’s friend, [Mr A], was killed during his, [the first named applicant]’s family visit to Australia in 2011. He said that [Mr A]’s parents were not sure who killed their son but noted that the Taliban were killing a lot of Shi’a at that time. [The first named applicant] claimed that when his eldest son [Child B] was abducted he reported the matter to the police who advised as it was a private matter he should sort out himself. [The first named applicant] claimed he received a telephone call from an Afghan number and the caller identified himself as a Talib. He said this Talib demanded money and provided instructions for the payment of the ransom in exchange for the safe return of his son. He said the Talib threatened that if he reported the abduction to the police or his family would be killed. He claimed that when the ransom was paid and his son was released unharmed, he was told to abandon the Shi’a religion and stop all contact with Shi’a.

21. [The first named applicant] claimed he was considered wealthy in his community, having worked for many years as a [Occupation 1], travelling extensively overseas with various [businesses] and earning US dollars. He said he had paid for this children’s student visas in Australia. He said he had been able to afford his son’s 10 lakh[2] rupees ransom and had not had to borrow money. [The first named applicant] claimed that in 2013, after his eldest son [Child B] had left Pakistan for Dubai, the Taliban called a few times demanding to know that son’s whereabouts. [The first named applicant] claimed that when he told the Taliban [Child B] had gone on a ship, all contact from the Taliban ceased.

    [2] A lakh is one hundred thousand. 10 lakh rupees is one million rupees, or currently approximately AUD 5,655:

22. [The first named applicant] claimed that during the period 2012-2013, he attended a Shi’a mosque about one or two kilometres from his house. He claimed he was always respected and welcomed into the Shi’a mosque. He claimed he ignored anonymous threats he was receiving and had not problems pursuing his “Shi’a activities.” He claimed he used to lie to those who threatened him about his associations with Shia and tell them he was not going to the Shia mosque or affiliating with Shia. He claimed that when his third son, [Child C], was kidnapped, Sh’ia neighbours warned him that his life was in danger and that he would be targeted and killed. He claimed they told him to stop attending their mosque. He claimed that [Child C] was also a [Occupation 1] who conducted his own business in Karachi. He claimed that [Child C]’s abductors are unknown. He claimed that as many as five [Occupation 1] have been targeted and killed, their bodies thrown into the sea.

23. [The first named applicant] claimed that people in Karachi are targeted in the above-mentioned ways for two reasons: their religion and their money. He told the delegate that he was targeted for both reasons. He claimed he was last threatened about his interactions with the Shi’a community shortly before he came to Australia in March 2014.

24. [The first named applicant] claimed he had one surviving sibling: a sister who was living [number] km from Karachi; a mother of deaf children.

25. The applicants provided a number of documents in support of their PV applications. The documents included photo identification for the applicants and photo identification for one of their son who resides in Australia. Copies of the applicants’ passports were provided and various documents were provided in relation to [the first named applicant]’s employment as a [Occupation 1] in Pakistan.

    Independent country information

26. I have had regard to the following information from DFAT[3] relating to the TTP and other armed groups in Pakistan:

    2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.

    2.40 TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have re-pledged allegiance. Under the leadership of Mehsud, 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. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.

    [3] DFAT COUNTRY INFORMATION REPORT PAKISTAN, 25 January 2022

27. I have also had regard to the following information from DFAT relating to Shi’a in Pakistan:

    3.55      Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions.

    3.56      Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.

    3.57      Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’.

    3.58      Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. Anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision).

    3.59      Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.

    3.60      Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS ... These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras, see Hazaras), compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.

    3.61      DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a face specific, heightened risks …

28. The following information, from the same source relates to the security situation in Pakistan as at January 2022:

    2.34      Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

    2.35      Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) … There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks …

    2.36      Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.

    2.37      While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).

    Armed groups

    2.38      Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.

    Domestic jihadist groups

    2.39      A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.

    2.40      TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have re-pledged allegiance. Under the leadership of Mehsud, 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. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.

    2.41      Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan. See also Race/Nationality and Religion.

    Global jihadist groups

    2.42      Islamic State (IS) and Al Qaeda both have a presence in Pakistan and have carried out attacks there, either directly or through proxies. Both groups are motivated to expand their influence and recruit fighters to their cause. They have targeted Pakistani military and government representatives, and religious and ethnic minorities, and also carried out anti-Western attacks. Besides LeJ, Al Qaeda has frequently collaborated with the TTP to carry out attacks. Al Qaeda’s capability in Pakistan has been reduced, but the group is still active. Two suspected Al Qaeda terrorists were reportedly killed in an encounter with police in Dera Ghazi Khan in November 2020. Recent IS attacks in Pakistan include the bombing of a mosque in Quetta in January 2020 that killed 15 people, and an attack in January 2021 that killed 11 Hazara miners in Balochistan. Many fighters for Islamic State in Khorasan Province (ISKP, the local branch of IS active in Pakistan and Afghanistan) are former TTP fighters, and the group has also carried out attacks in coordination with LeJ, including a 2016 attack on a Quetta police station.

    Nationalist and ethnonationalist groups

    2.43      India-focused Sunni extremist groups use Pakistan as a safe-haven, as well as for recruiting and fundraising. Their goal is to unite Indian-administered Kashmir with Pakistan under a radical interpretation of Islam. Since 2015 the capacity of these groups has been degraded by the Pakistani military, but they remain a threat to regional stability. These groups include Jaish-e-Mohammad (JeM) and Lashkar-e-Taiba (LeT). The former claimed responsibility for an IED attack that killed 12 soldiers in Pulwama in 2019, while the latter was responsible for the 2008 Mumbai terrorist attacks that killed 164 people. According to Indian media, these groups continue to carry out targeted attacks against civilians and security forces in Indian-administered Kashmir, with ‘about 15’ such killings in October-November 2021. These groups do not generally carry out attacks within Pakistan but may seek to kill or intimidate rivals or ex-members, or engage in other illegal activity.

    2.44      Ethnonationalist groups in Sindh and Balochistan carry out attacks against the Pakistani military and government, often causing civilian casualties. These include the Baloch Liberation Army and the Baloch Liberation Front, both of which carried out multiple deadly attacks in 2020, as well as the Sindhudesh Liberation Army. The goals of these groups include independence or greater autonomy for their provinces.

1. DFAT also makes the following observations about perceived blasphemy and apostasy in Pakistan:

   3.32      Blasphemy and other offences relating to religion are criminalised in Pakistan under Articles 295 and 298 of the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. The punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by a fine.

   3.33      Religious conversion from Islam (apostasy) while not illegal is often seen as blasphemous and can result in prosecution under blasphemy laws, or in familial or communal violence. Article 295A prohibits insulting any religion, not just Islam, and carries a sentence of up to 10 years’ imprisonment, which may also be accompanied by a fine.

   3.34      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, 20 per cent Ahmadi and 3.5 per cent Christian. False accusations of blasphemy are used to settle personal disputes, as in the case of Asia Bibi, a Christian woman sentenced to death for blasphemy in 2010 after a dispute with Muslim neighbours in which they refused to share water with her because she was a Christian. Bibi was acquitted and released from prison in 2018 and fled to Canada. People have been charged with blasphemy for online speech; for instance, three men were sentenced to death by an Islamabad court in 2021 for sharing ‘blasphemous’ material on social media. In July 2021, an eight-year-old boy was charged with blasphemy in Eastern Punjab after allegedly urinating in a Madrassa library.

   3.35      The conviction rate for blasphemy in the lower courts is high, and judges are often under enormous public pressure to deliver a guilty verdict. A Pakistani legal expert told DFAT most blasphemy convictions were overturned by the higher courts, but an accused blasphemer was likely to spend years in prison even if the accusation was eventually found to be baseless. Judges and defence lawyers are often reluctant to take on blasphemy cases due to the personal security risks involved, resulting in appeals being delayed until a new bench is constituted.

   3.36      Accused blasphemers are at risk of extrajudicial killing, before, during, and after being taken into custody. In December 2021, a Sri Lankan man was beaten to death and his corpse set on fire after being accused of blasphemy due to removing posters from the wall of the factory in Sialkot, Punjab, where he worked. During the murder his killers chanted slogans popularised by Tehreek-e-Labbaik Pakistan (TLP), an Islamic extremist group. Afterwards they posed for selfies with his corpse and shared video of his murder on social media. In August 2020 a US national on trial for blasphemy, Tahir Naseem, was gunned down in a Peshawar courtroom by a 15-year-old boy. Thousands rallied in the streets to support Naseem’s killer, and politicians visited the killer’s home and police posed for selfies with him. Extremist groups and individuals have targeted politicians, lawyers and judges who have spoken out against blasphemy laws. The former governor of Punjab, Salman Taseer, was assassinated by one of his bodyguards for calling for reform of blasphemy laws. Large numbers of people protested when his assassin (whom they considered a hero) was executed in February 2016.

   3.37      DFAT assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and high risk of societal and official discrimination in the form of popular denunciation, unfair trials and inadequate state protection. The risks are especially acute for members of religious minorities, including Shi’a, Ahmadis, Christians and Hindus.

2. With regard to kidnapping in Pakistan, I have had regard to a 2009 report[4] from Security Newswire which observed:

   According to security firm red24, kidnappings in the country are carried out by Pakistani militants and separatists, as well as professional criminal groups and on occasion, inexperienced individuals.

   [4] “Kidnapping a growing problem in Pakistan,” Security Newswire, 16 March 2010,

3. The New York Times reported[5] in 2012 that the Pakistan Taliban engaged in kidnapping civilians around that time to raise funds to arm themselves against the state military:

   A campaign of high-profile kidnappings has provided the Pakistani Taliban and their allies with new resources, arming insurgents with millions of dollars, threatening foreign aid programs and galvanizing a sophisticated network of jihadi and criminal gangs whose reach spans the country.

   Wealthy industrialists, academics, Western aid workers and relatives of military officers have been targets in a spree that, since it started three years ago, has spread to every major city, reaching the wealthiest neighbo[u]rhoods, Pakistani security officials say.

   For many hostages, the experience means a harrowing journey into the heart of Waziristan, the fearsome Taliban redoubt along the Afghan border that has borne the brunt of a C.I.A. drone-strike campaign.

   One young Punjabi businessman who spent six months there in Taliban hands last year described it as a terrifying time of grimy cells, clandestine journeys, brutal beatings and grinding negotiations with his distraught, distant family ...

   Kidnapping is a centuries-old scourge in parts of Pakistan, from the tribesmen who snatched British colonists in the 19th century to the slum gangs that have preyed on Karachi business families since the 1980s. The national total has varied only slightly in recent years: from 474 kidnappings for ransom in 2010 to 467 last year, according to Interior Ministry figures.

   What has changed, however, is the level of Taliban involvement.

   In one case, a 70-year-old German aid worker and his 24-year-old Italian colleague, who disappeared from the city of Multan on Jan. 20, are being held by militants in North Waziristan, a senior security official confirmed.

   [5] “Taliban Gaining More Resources From Kidnapping,” The New York Times, 19 February 2012,

4. Another report[6] indicates that the TTP was running a “brisk trade” in kidnappings in Karachi in 2012:

   In Karachi, police say the Taliban are generating funds through bank robberies, protection rackets and kidnappings.

   Abductions are particularly lucrative, with ransom demands sometimes running to millions of dollars …

   Kidnapping is a traditional industry in Karachi, and it’s on the rise. Last year there were more than 100 recorded cases of kidnap for ransom – a record high. While gangs from Balochistan are often involved, militants are fighting for a share of the market …

   “With local criminals, kidnaps can take six weeks to resolve,” says Sharfudding Memon, an adviser to the government of Sindh province. “With the Taliban it can take six months, or a year. They demand payment in foreign currency and they do their homework quite well.”

   Under surveillance: The doctor was abducted by kidnappers who told him they had been watching him for weeks. Police say this is typical …

   [6] Taliban’s brisk trade of kidnapping in Karachi,” Pakistan Today, 24 March 2012,

5. It is of interest that that the Pakistan police are evidently willing and able to get involved when a person is kidnapped, even by the TTP. It is also of interest that kidnappings by the TTP potentially involved millions of US dollars in demanded ransom and could take a year to resolve, whereas the kidnapping described by [the first named applicant] was resolved in a few days upon payment of a 10 lakh rupees.

   Evidence given to the previously-constituted Tribunal

6. [The first named applicant] told the Tribunal he had retired as a [Occupation 1] in 2001 but had carried out work involving [specified tasks] associated with the [Occupation 1] industry from time to time when he was in Pakistan and after he had retired. He confirmed that he had travelled to Australia on a number of occasions between 2011 and before arriving in Australia in March 2014. He said he came to Australia on those occasions to visit his family.

7. [The first named applicant] told the Tribunal he had converted to Shi’a and was seeking protection on the basis that he belonged to a particular social group of wealthy Pakistani men. He said the people who had kidnapped his eldest son in Pakistan had called themselves "Taliban". He referred to an incident that he said had occurred in Pakistan recently where 20 Shia people on a bus had been killed by Daesh (ISIS or ISIL) and that had occurred in late 2016 in Karachi.

8. [The first named applicant] claimed he had converted to Shi’a in 2011 because he was impressed by the charitable work carried out by a particular Shia organisation in Pakistan (and the work carried out individually by [Mr A]). He said he had liked the attitude of Shia Muslims in helping other people. He initially told the Tribunal that the Shi’a organisation was Jamat -Ul-Widah but subsequently said he made a mistake about the name of the organisation and said it was Anjuma- E-Tableeg. He said that organisation helped orphans and had also helped his sister with her children. He said that he had provided financial assistance to [Mr A] to assist orphans and that he had also done similar work when he was younger and was of the Sunni faith. [The first named applicant] said he had first met [Mr A] in 2011 and would see him on a weekly or fortnightly basis . He said he had known [Mr A]'s father from “maybe” 2008. He said that [Mr A] had been threatened by the Taliban and they had killed him in 2011. He also said that [Mr A] himself had told him about the threats. He said that [Mr A] had been killed while he, [the first named applicant], and his wife were in Australia in 2011. He said that [Mr A] had been threatened because he was a Shia and also because he collected money for children. He was asked if he knew which group or part of the Taliban had killed [Mr A] and he said he did not know which group. He told the Tribunal that because he had been overseas for long periods of time he was not familiar with the various militant groups within Pakistan. He said that [Mr A] had been killed and found on a road and that he was shot and that he was told about his death by [Mr A]'s father.

9. Asked to provide some subject details about why he converted to Shi’a Islam, [the first named applicant] evidently told the Tribunal that that he was sympathetic Shi’a people. Asked why he had converted, he said that everyone has a God-given right to religion. Asked about whether he attended a Shia mosque in Australia, he said his attendance at the mosque depended on whether the family was available to take him. He said he attended the Shi’a mosque at Auburn sometimes but usually prayed at home. He said his children sometimes went to the mosque.

10. The Tribunal evidently asked [the first named applicant] about the claim in his PV application where he said that he was "not officially Shia". [The first named applicant] said he had said that because there were no documents showing he had converted. The Tribunal asked him whether he had actually converted or whether he was just sympathetic to the Shi’a faith. He claimed he had converted in 2011 but he was also sympathetic to Shias. He said he did not have any documents showing that he was of the Sunni faith before he converted. He said, however, that he had married in a Sunni ceremony and had attended Sunni mosques when he had been Sunni.

11. Asked about the conversion process that he had undertaken, [the first named applicant] said that this had occurred in Karachi at a mosque near Karachi Port. He said there had been no ceremony. He said he attended the mosque and said prayers and that the people at the mosque at the time were told that he was converting to the Shi’a faith. He said he converted in 2011 before he travelled to Australia in that year. He claimed that [Mr A] and [Mr A]'s father had made the arrangements regarding the announcement at the mosque at the time of his conversion. He claimed all members of his family had now converted to the Shi’a faith.

12. The Tribunal evidently asked for more detail about the conversion process. The Tribunal also asked him why, in the claimed circumstances, he had delayed lodging a PV application for so many years, as he had last arrived in Australia in March 2014 but had not applied for a PV until October 2015. In response, [the first named applicant] said his wife's health had been one reason for the delay and that she had been allowed to extend her stay here on a medical treatment visa. He then evidently referred to his younger son’s disappearance in Pakistan in September 2015. He said that he did not need to apply for a protection Visa until after his younger son was kidnapped in Pakistan. He said his other son had come to Australia in 2013 and was seeking a protection Visa. He said he applied for a PV after his younger son had disappeared.

13. Asked about the kidnapping of his eldest son ([Child B]) in Pakistan, [the first named applicant] said that he received calls after his son had been kidnapped in 2012. He said he was in Pakistan and paid the money for the release of his son before he came to Australia. Asked if he had reported the son’s kidnapping to the police and if he had filed a first information report with the police, he said the police would not issue a first information report and would not register his complaint. He claimed the police said the kidnapping was his own problem. Asked about the details of the threatening telephone call that he claimed he had received, [the first named applicant] said that the people who called him said they belonged to the Taliban and said they would kill his son and demand 10 lakh rupees if he did not abandon Shi’a. He went on to describe events that appear to illustrate that the kidnappers were only interested in the money, claiming that he went on to further mercenary demands over time. Asked how he had raised the 10 lakh to pay the ransom, he said he had the money in the bank. He named the [specified] bank. The Tribunal put to him that in those circumstances he ought to have been able to produce some record to show that he had withdrawn that sum of money to pay the ransom.

14. After an adjournment, a second hearing which was conducted. The Tribunal was provided with a significant number of documents, including financial  and bank statements and documents pertaining to [the second named applicant]’s medical history. A third group of documents comprised medical reports pertaining to [the first named applicant] himself.

15. A fourth group of documents related to the death of [Mr A] in Pakistan and other acts of violence apparently perpetrated by terrorists/militant groups in Pakistan. The final group of documents was entitled “histry [sic] of Shia dead in Pakistan reference news”.

16. The financial/bank statement documents evidently indicate that [the first named applicant] conducted a bank account in Karachi in Pakistan. The documents relating to the death of [Mr A] indicated that his death was reported in media ([named media outlet]) in Pakistan [in August], 2011. In summary the media article that was provided states that [Mr A] “was targeted and was martyred by the terrorist of the banned organisation SSP”. The media article said that his death was “a clear case of ongoing targeted killing of Shia men” by the SSP, LeJ and TTP. There were also other media articles provided which in summary referred to the killing of people in Pakistan and referred in some cases to the deaths of Shia people. The newspaper articles were published in August 2011. The documents relating to the history of Shi’a dead in Pakistan contained a number of reports about attacks on Shi’a people between 2010 and 2017.

17. The Tribunal [the first named applicant] about withdrawals from his bank account in December 2012. The entries indicated that he had withdrawn a total of one million (or 10 lakh) rupees over two occasions in December 2012. [The first named applicant] told the Tribunal that he gave that money to the kidnappers of his son [Child B].

18. Medical reports about [the first named applicant] indicated that he was suffering to some extent from dementia, hence the apparent vagueness of some of his evidence.

19. [The first named applicant] said his younger son had disappeared about a month before he made his PV application in Australia. He said his son had been living in the family home in Karachi with his wife and children and had been working as a [Occupation 1] earning a good salary. He was evidently asked if his son’s disappearance had been reported to the police in Pakistan and he said he did not contact the police but thought his daughter-in-law “should have” and then said that his daughter-in-law had reported to the police but had not received a response. Asked if a demand for ransom had been made in relation to the kidnapping, [the first named applicant] evidently responded by talking about the kidnapping of the Prime Minister’s son in Pakistan and said that the Prime Minister’s son had been kidnapped and nothing had been done. He then said he had not heard anything about a demand for money and neither had his daughter-in-law.

20. Asked about his claim that he was at risk in Pakistan because he was seen to be a member of a group of wealthy Pakistani men, [the first named applicant] said that he had been just getting a monthly salary in Pakistan and then said that he was not rich person but was also not poor. Asked about his assets in Pakistan, he said he owned a home in Karachi and his wife owned another property in her name. The other property had been rented at some stage but was no longer rented because his son who lived in [Country 1] had stored his furniture in that home.

21. [The first named applicant] said that he had 3 lakh in the bank in Pakistan. Asked if people in Pakistan would think that he was rich, he said there were wealthier people than him in Pakistan. Asked if he thought he was at risk in Pakistan on the basis of any perception that he might be wealthy, he said he thought that he was at risk because of his religious conversion in Pakistan and that he was being targeted for harm on a religious basis.

22. The Tribunal asked about the possibility of relocation away from Karachi in Pakistan. [The first named applicant] said there was no other place that was safe in Pakistan, that he would be traced anywhere in Pakistan and that his life would be in danger everywhere there. The Tribunal asked [the first named applicant] if he had actually been harmed in Pakistan and he said that he had been abroad since 1970, had lived mainly overseas in that time and had only started receiving warnings after he had converted to the Shi’a faith. He also evidently told the Tribunal that he was now old and did not believe he could live in Pakistan. Asked what he would do if he had to return to Pakistan and he said that he and his wife owned two homes in Karachi and that his belongings were in Karachi.

23. The Tribunal put to [the first named applicant] that his three return trips to Pakistan after coming to Australia in 2011 did not appear consistent with his claims to fear harm in Pakistan.

24. The Tribunal referred to certificates issued pursuant to section 438 of the Act in terms of nondisclosure of documents. The Tribunal said that it did not believe that the documents subject to the certificate where relevant to the Tribunal’s assessment of the applicants claims and the Tribunal was not intending to rely on those documents. The applicant responded by saying that he had provided information to the Department support of his claims.

    The Federal Court

1. As noted in [case citation], Federal Court of Australia, [number] of 2022, [date] 2022, at [19]:

   Although the delegate did not accept that the first appellant had converted from the Sunni faith to the Shia faith, she did accept that he had been targeted because of his “pro-Shia” views and associations.  The delegate accepted that the first appellant was sympathetic to Shia Muslims and that he had previously engaged with Shia Muslims, despite threats and violence from anti-Shia groups.

2. The previously-constituted Tribunal, meanwhile, identified that the appellant claimed to fear harm as a convert to the Shi’a faith but was not satisfied that he had converted and found that his motivation for applying for protection was to remain in Australia to be cared for by his family and to receive healthcare.

3. Before the Circuit Court, the applicants as appellants argued the Tribunal erred by failing to consider that they would be persecuted due to their eldest son's relationship with [Mr A] who had been killed, allegedly by the Taliban. On appeal to the Federal Court they contended that the Tribunal had failed to consider [the first named applicant]'s claim to fear persecution because he was perceived to be a Sunni who was sympathetic to Shi’a Muslims due to the eldest son's friendship with [Mr A].

4. The Federal Court found that the appellants’ claims included a claim to fear persecution in Pakistan on the basis that [the first named applicant] is perceived to be a Sunni who is sympathetic to Shi’a Muslims, and that the previously-constituted Tribunal failed to engage with that claim. The Court found that the Tribunal either misunderstood or misconstrued [the first named applicant]'s claims and, in doing so, effectively treated this particular claim as nothing more than incidental to his claim to have converted to the Shi’a faith, rather than as a separate, independent, and substantively different claim. The Court found that the fact that [the first named applicant] might be motivated by health and family factors to remain in Australia did not belie the possibility that he also had a real and genuine fear of persecution, on the basis of his perceived Shi’a sympathies.

   Evidence given at the hearing before the presently-constituted Tribunal

5. Before hearing evidence, I drew [the first named applicant]’s attention to the non-disclosure certificate in his Immigration Department file. I advised him that it covered an internal working document and was therefore invalid in law.[7] I also advised him that the “certificated” document contained nothing at all do with matters the Tribunal needed to test; it was only an identification checklist. [The first named applicant] indicated that he understood and the hearing proceeded.

   [7] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 CLR 1; 243 FCR 1; 155 ALD 98

6. At the beginning of the hearing, [the first named applicant] submitted several news stories dated between October 2022 and February 2023 reporting on skirmishes between Pakistani military and the TTP and on a number of suicide bombings, particularly of Sunni mosques in Khyber Pakhtunkhwa (KPK) Province. [The first named applicant] told me he used to pray “there,” seeming to suggest that he used to attend one of the mosques that had been bombed. However, I note that these Sunni mosques are or were all in provinces other than Karachi’s province of Sindh, whereas [the first named applicant] claimed in his original PV application to have lived all his time in Pakistan after 1975 in Karachi.

7. [The first named applicant] told me his memory is not good. However, he was able to recall that he and his wife applied for a medical treatment visa at the end of their family visit to Australia, long before seeking asylum here by lodging a PV application. He said the medical treatment visa was granted after a GP advised that [the second named applicant] was not well enough to travel by air, due to then-recent knee replacements and other issues. I put to [the first named applicant] that it appeared he and his wife did not lodge their PV application until their one-year medical treatment visa was due to expire. I asked him to discuss this apparent delay and he said because of his wife’s condition he had not known what to do first. He said he eventually received calls from Pakistan telling him his life was in danger. He also mentioned being worried about his son’s situation. He said the TTP had kidnapped his son [Child B] and that he eventually had to pay 10 lakh (or one million) rupees to arrange for the latter to come to Australia. He said [Child B] is seeking a PV in Australia, his case not yet finalised.

8. [The first named applicant] said he converted to Shi’a in 2011. He said he had no evidence to support that claim. He said there had been no formalities or official ceremony.

9. I asked [The first named applicant] to tell me why he embraced Shi’a as a faith. He said he did so because the TTP and other groups were violent towards Shi’a. I asked him what if any spiritual awakening had happened and he said that these armed groups believed that anyone against Islam should be killed. I asked him what factors prevailed to attract him to a religious stream potentially in the face of being killed, and he said the armed groups were against humanity whereas Shi’a “follow” humanity. I then put to [the first named applicant] that not all Sunni are TTP and that there must be plenty of Sunni who are also humane. I asked him why he took the risk of being seen to have apostatised and he referred to [Child B] having been friends with [Mr A] who had been killed in 2011. 

10. I asked [the first named applicant] to tell me what core beliefs, unique to Shi’a Islam, he had embraced and what core beliefs in Sunni Islam he had abandoned. In reply, he said the spirit was inside him and therefore he converted. I asked him again for examples of differing beliefs between Sunni and Shi’a and he said “I feel good. I’m happy.” He went on to say he went to a church while he was visiting the USA and saw caring people. He said he saw Buddhists in Japan and lit candles there. He said he had been to India and had gone to the UK where he saw a big church. He spoke positively of all these different religious settings as an apparent outsider.

11. [The first named applicant] then said that in Pakistan, Sunni and Shi’a are different, that he liked the Shi’a philosophy and therefore converted. I asked him if he could tell me one specific aspect of Shi’a “philosophy” that he liked and he said Shi’a had come from Iran. I asked him what Shi’a teaching might be so important to him that he would potentially risk death by converting from Sunni to Shi’a, such conversions reportedly being quite a risky enterprise in Pakistan. In response, [the first named applicant] said Shi’a appealed to him. He said Shi’a respected him, gave talks and liked his name. He said that everybody has a right to choose.

12. With some effort, [the first named applicant] remembered that a Shi’a worship centre is called an imambargha: he said, “They use imambargha.” I then asked him if he meant to say “they” or “we” and he said, “We.”

13. I asked [the first named applicant] why he had said he was “not officially” Shi’a in his PV application and he said that that could have been an error.

14. I asked [the first named applicant] about his day-to-day life in the Shi’a community and he said that, due to age and infirmity, he generally does all his praying at home. He said his home is his own imambargha here he and his wife pray. He indicated knowing where two Shi’a mosques can be located in Sydney. He said he had visited one of them two or three times around six or seven years ago, after coming to Sydney. He acknowledged having been here nine years. [The first named applicant] Indicated that he was aware of the Shi’a festival of Ashura taking place in the month of “Moharram.” He said he had once attended an Ashura festival in Western Sydney as an observer about three or four years ago. He indicated that the Shi’a community welcomes everyone who want to attend.

15. I invited [the first named applicant] to recall whether the delegate and the previously-constituted Tribunal had believed he had genuinely converted from Sunni to Shi’a. I did this aware that the other Tribunal’s findings are quashed and that I must have no regard to them at all; however, I wanted to hear [the first named applicant]’s response to the possibility that his claims might not have been believed and explore whether further evidence supporting his claim might have come to light. Here, [the first named applicant] seemed unable to recall things very well, as he seemed to suggest that everyone had believed him including an interpreter. I do not count this inability to recall decision outcomes against [the first named applicant], given the evidence in this matter of relatively early-stage dementia.

16. I put to [the first named applicant] that his claimed conversion to Shi’a had not been accepted as fact by other decision-makers. I referred to the lack of evidence supporting his claims. In reply, [the first named applicant] said vaguely that his family had been “attacked” and his son kidnapped. He said that only happens to Shi’a. He said the TTP in Pakistan does not attack Sunni. This position, however, is undermined by the material [the first named applicant] himself submitted to the Tribunal prior to the hearing. I asked him if he could provide any evidence of himself or anyone in his family having been “attacked” and he said he had submitted a news story about someone else being attacked.

17. Later in the hearing, I devoted attention to the claim the Federal Court found to have been overlooked by the previously-constituted Tribunal: the claimed fear of being persecuted for reasons of being a Sunni who sympathised with Shi’a. I was interested in finding out from [the first named applicant] how his sympathy with Shi’a might be discernible in Pakistani society. In reply, he said he does not know how to be sympathetic with Shi’a because he is already, in fact, a Shi’a. I asked him to tell me what would happen to him in Pakistan if he told people, for example, that “Shi’a are OK.” In reply, he said that if a Sunni in Pakistan says, “Shi’a are OK, [then] that is fine.” He indicated that if he ever said this to an extremist, however, he would be harmed.

18. I asked [the first named applicant] to give me any details he could about any support of any kind that he might have given Shi’a in Pakistan in the past. In response, he said, “We used to attend their gatherings … and Ashura … and whatever [was] needed.” I asked him if it had been a risk for him to been seen in public participating in Ashura processions in Pakistan and he said the processions always had a lot of security.

19. I asked [the first named applicant] when he first knew it was or would be dangerous to covert from Sunni to Shi’a. In reply, he said that initially he had never known. He said he converted before hearing of anyone being targeted in such circumstances. He said he heard that two were killed in 2011. I asked him why he did not then apply for a PV when he visited Australia in 2012. In reply, he said, “We were OK. We were not targeted.” He said his wife travelled to Australia on their son’s student visa around that time and then became sick, whereupon he flew here to take her back to Pakistan.

20. I asked [the first named applicant] if he had any other claims or issues to raise. He said that he was elderly and did not care if he died in Pakistan or Australia but for the fact that [number] of his children are currently in Australia. He said, “I’m [age]; I need protection.”

    Findings in relation to s.36(2)(a) of the Act

21. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]

    [8] MIMA v Rajalingam (1999) 93 FCR 220 .

    [9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

22. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[10] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[11]

    [10] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [11] Sun v MIBP [2016] FCAFC 52 at [69].

23. In regard to this case, I am conscious that [the first named applicant] has been diagnosed with dementia and that this has likely had an effect on his capacity to find words, remember dates and communicate some details. That said, I noticed that he tended generally to answer my questions on their respective points and, on what I heard overall, I am satisfied that he has not been prevented by any circumstance from giving meaningful evidence in this matter.

24. [The first named applicant]’s claims relate to “religion” (Shi’a; perceived Sunni fraternising and sympathising with Shi’a) and “membership of a particular social group” (persons perceived in Pakistan to be rich).

25. Having considered all of [the first named applicant]’s evidence, I accept that he was raised in the Sunni stream of Islam. I accept that he married according to Sunni ritual. I therefore conclude that he and [the second named applicant] raised their children as Sunni Muslims.

26. [The first named applicant] claims that the alleged 2011 kidnapping of his son [Child B] occurred for three relevant reasons: to punish him, [the first named applicant], for having converted to Shi’a and to press him to convert back to Sunni; as a way of punishing him, and perhaps also his son, for having affiliated and sympathised with Shi’a people such as [Mr A]; and, in [the first named applicant]’s words, to persecute him purely for being rich. I have problems with all three of these claimed factors.

27. Interestingly, [the first named applicant] told the previously-constituted Tribunal that [Child B]’s kidnappers claimed to be Taliban and told him they would kill [Child B] and demand 10 lakh rupees if he, [the first named applicant], did not abandon Shi’a. On this evidence, the first step to take to satisfy the TTP would have been somehow to indicate re-conversion back to Sunni Islam. [The first named applicant]’s evidence, however, ultimately shows that the kidnappers only wanted the money, which he said he could well enough afford. The kidnappers did not hold [Child B] until [the first named applicant] reverted to Sunni. In the logic of what [the first named applicant] told the previously-constituted Tribunal, his failure to convert back to Sunni should have seen the death of his son. The evidence [the first named applicant] gave the previously-constituted Tribunal was also different from what he told the delegate, when he said that he received a telephone call from an Afghanistan number, the caller identifying himself as a Talib, and a demand for money along with instructions for the payment of the ransom in exchange for the safe return of his son. He told the delegate that when the ransom was paid and his son was released unharmed. In that evidence there was no demand about requiring [the first named applicant] to convert back to Sunni. [The first named applicant] told the delegate that it was after the release of his son that people told him to abandon and cease all contact with Shi’a. [The first named applicant]’s evidence about the terms of the ransom is inconsistent.

28. Meanwhile, the 10 lakh rupee amount of money [the first named applicant] evidently withdrew in December 2012 is the same amount that he told me he spent at some stage on his son’s enrolment and student visa in Australia. Hence it is not clear that that amount of 10 lakh rupees actually went to kidnappers. [The first named applicant] is not helped by the fact that he did not present [Child B], currently residing in Australia, to give potentially relevant evidence in this matter.

29. [The first named applicant] claims to have told the police that the TTP had abducted his son, only to be told that that was a matter for him alone. The response [the first named applicant] clams to have received is not congruous with independent reporting about the willingness of Pakistani police to assist in resolving kidnapping cases, even where the perpetrators are from armed groups like the TTP. [The first named applicant]’s evidence is also incongruous with independent information about who the TTP preferred to target, how much they demanded and how long such cases dragged out.

30. Meanwhile, rather than seek protection in Australia after his son was allegedly kidnapped, [the first named applicant] travelled back to Pakistan several times, and did not lodge a PV application until several months after his last arrival here. In this way, he did not behave consistent with genuine fear of serious harm in Pakistan.

31. On the evidence before me, and without more, it is hard for me to accept with any confidence that [the first named applicant]’s son [Child B] was ever kidnapped and ransomed in 2012. Another decision maker with other information might come to a different conclusion. However, even if I do accept that [Child B] was kidnapped in 2012, I am confident in finding that I do not accept that religion, or extremist socio-politics, had anything to do with it at all.

32. The first reason for this is that, on the evidence before me, I am not satisfied that [the first named applicant] embraces or holds, or ever has embraced or held, any genuine Shi’a religious beliefs or even interest in the latter. Whereas I can accept that he may have been acquainted with [Mr A] and his father, I am not satisfied that he ever converted from Sunni to Shi’a even on his own stated terms, which he has generally described as an informal conversion inspired by social affections and considerations. For this reason, I do not accept that any person or party in Pakistan, such as the TTP or any other extremist group, perceived [the first named applicant] or any member of his family to be Shi’a. It follows that I do not accept on the evidence before me that anyone demanded under threat of any kind that [the first named applicant] “convert back” to Sunni Islam.

33. The second reason is that, on the evidence before me, I do not accept that [the first named applicant] has ever demonstrated any potentially significant degree or manner of sympathy or solidarity with Shi’a in Pakistan (or Australia for that matter). Whereas I can accept that [the first named applicant] knew [Mr A] and also attended or observed Ashura rites in Pakistan, I do not consider these facts significant. [The first named applicant] indicated that anyone is able to observe an Ashura procession. The evidence he gave me about how he used to affiliate with Shi’a in Pakistan, and leave himself susceptible to appearing to be a sympathiser, was ultimately unsatisfactory. I give weight to DFAT’s description in its 2016 Thematic report on Shi’a in Pakistan of Shi’a and Sunni in Karachi generally getting along with each other. I also give weight to [the first named applicant] having indicated that Ashura rites are open to public observation and managed as mass events. I note that [the first named applicant] has claimed that he and his family were “attacked” but that claim, when it was made, was unsupported and vague. He has claimed that he used to receive occasional death threats, but he said these were tied to demands that he re-convert to Sunni and thus based on the assumption that he was a Shi’a, as distinct from a Shi’a-sympathising Sunni. I have already found that I do not accept that [the first named applicant] ever converted to Shi’a, so I do not accept that he received death threats about his religious profile or affiliations. Hence I do not accept that he ever received such death threats. I give no weight to claimed death threats as evidence of [the first named applicant] having been targeted for being sympathetic with Shi’a. [The first named applicant] having told the delegate that he only started receiving warnings after he had converted to the Shi’a faith in 2011, indicates that nothing potentially significant happened to him before he supposedly converted to Shi’a (which, I find, he did not do). On the evidence before me, I am not satisfied that the kidnapping of [Child B] had anything to do with [the first named applicant] or himself being sympathisers with Shi’a Muslims or Shi’a Islam.

(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.

…