BBN16 v Minister for Immigration

[2018] FCCA 3087

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBN16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3087

Catchwords:

MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider a claim – relocation – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: BBN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1129 of 2016

Judgment of: Judge Nicholls

Hearing date: 26 April 2018

Date of Last Submission: 26 April 2018

Delivered at: Sydney

Delivered on: 30 October 2018

REPRESENTATION

Counsel for the Applicant: N Poynder by direct access

Counsel for the Respondents: K Pham

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 6 May 2016 and amended on 10 August 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1129 of 2016

BBN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 May 2016 and amended on 10 August 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which on 8 April 2016 affirmed the decision of the Minister’s delegate (“the delegate”) to refuse the grant of a protection visa to the applicant.

2. The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of the applicant of 28 July 2016 annexing a transcript (“T”) of the hearing before the Tribunal.

Background

1. The applicant is a citizen of Pakistan (CB 13). He arrived in Australia as the holder of a visitor visa on 9 April 2013 (CB 14). He applied for a protection visa which was received by the Minister’s department on 1 July 2013 (CB 1 to CB 62).

2. A detailed summary of his claims to fear harm are set out in the applicant’s written submissions to the Court of 13 April 2018. I am satisfied, on the evidence before the Court, that this is a fair summary of the applicant’s claims to fear harm as they appeared in his statement provided in support of his protection visa application (see CB 27 to CB 33), and adopt [4] of the applicant’s written submissions as follows:

   “4. In his statement the applicant made the following claims:

   (a) During his Year 12 at ITM College in February 2012 he met and fell in love with a Shi'a Muslim girl called Ghulam Fatima who was also in Year 12, and in November he converted from his own Sunni religious group to the Shi'a group.

   (b) A few days after converting, on 27 November 2012, he was sitting in the Chaman Ice Cream Cafe in Sargodha with Ghulam, and she told him she was going to tell her parents about their relationship and ask for their approval for them to marry. About 45 minutes later, one of her brothers came with two guards and beat the applicant and took Ghulam. Two days later, Ghulam called him and told him that she had persuaded her mother to accept the relationship but her father and brothers were opposed. After that, her family then stopped her attending college and her father told her that they had arranged for her to marry a relative who is a very religious Shi'a.

   (c) The applicant returned to college on 3 December 2012, and on 4 December 2012 he was returning home at the end of the day when his car was stopped about five kilometres from his home by four people with covered faces on two motorbikes. The men pulled him out of the car and one of the men put a pistol to his head and told him not to contact Ghulam again or he would be dead. He was then beaten for five to seven minutes and he became unconscious.

   (d) The applicant said that some people from a nearby shop took him to the Sargodha Public Hospital where, when he regained consciousness, he saw his father and local media people around him. He was interviewed by the media and then told his father about his relationship with Ghulam, his conversion and what had happened. His father was shocked and angry and left the room, returning twenty minutes later to tell him not to tell anyone in their village about his conversion as the people in the village were very opposed to Shi'a Muslims.

   (e) The applicant's story was published in the local newspaper, the Rafaqat, which mentioned that he had converted to being a Shi'a Muslim. In the evening, some local people came to their house with the newspaper and threw it at his father and asked him to explain.

   (f) On 8 December 2012 his father received a call from a silent number and a man told him that his son had converted and was a kaffir and they are not going to sit by quietly. The next day his father locked him inside the house and went to the police and told them about the telephone threat. The police told him that his son had converted which was a very dangerous thing to do.

   (g) On 14 December 2012 the applicant went into the city in Sargodha to buy medicine and meet Ghulam. She told him that her parents had locked her home and did not allow anyone to meet her. On his way home, five people in a car came up behind him and he saw one of them hold his arm out the window with a pistol, and, before the man shot at him, he jumped into the ditch and the other car drove off without stopping. He called his father who came and took him to the hospital and, after he received treatment, his father told him to leave the city. At about midnight that day, his father drove him to their relative's house in Pandoriyaan, 150 kilometres away, where no one knew him.

   (h) About a week later, his father called him and told him that 8-9 people had come to their home at night with knives and pistols and searched the house for the applicant. They told his father that they would punish him for what his son had done.

   (i) Three weeks later, his uncle's neighbour told his uncle that a stranger had asked him if he had seen a new person, a young boy, in the neighbourhood. As soon as he was told this, the applicant called his father and told him they were looking for him in Pandoriyaan. His father told him to leave Pandoriyaan and go to Faisalabad and stay with another relative. Two days after he left Pandoriyaan, seven people in two cars came to his uncle's house in Pandoriyaan at 11 pm looking for him, and they beat and harassed his uncle and his uncle told them he had been there but had left two days earlier.

   (j) While the applicant was in Faisalabad, his elder brother, Urfan, who lives in Australia, told their parents to apply for a Tourist visa for him to come to Australia until things cooled down in Pakistan.

   (k) After the applicant arrived in Australia, he spoke to his father who told him that well known Sunni preachers had come to their house and told him that because his son had become a kaffir they should have no contact with him. The preachers warned his father that if he tried to hide him, he would also be cut off from the religion, and they would come after him as well as his son. His father contacted the police but they did nothing.

   (l) The applicant spoke to his father on 12 June 2013 and his father told him that six men had forcefully entered their house at midnight looking for him, and his father told them he was in Australia.

   m) In relation to the possibility of relocation, the applicant said:

   After this alarming threat of religious parties and silence of police, I feel very unsafe to ever go back and stay anywhere in Pakistan.

   They are very dangerous people and brutal killing for sake of religion is common practise for them. They have very strong lobby in Pakistan and their own people are working in all departments of Government.

   Considering their strong influence in public and private sector, I am sure they can find me anywhere in Pakistan if I will ever decide to go back. In Pakistan most of the department are linked to high Tech NADRA (National Database and Registration Authority) system, where they can easily locate my address or location if I will open, any bank account, register electricity or gas connection, voter registration, renting house or working in any private or public sector.”

   [Footnotes omitted.]

3. The applicant was interviewed by the delegate on 6 November 2013 (CB 89.2). The delegate refused to grant the applicant a protection visa on 10 February 2014 (CB 82 to CB 96).

4. The applicant applied for review to the Tribunal on 28 February 2014 (CB 97 to CB 102). The applicant’s then representative provided written submissions and other supporting documents to the Tribunal on 5 November 2015 (CB 121 to CB 133). The applicant was invited to, and attended, a hearing before the Tribunal on 20 November 2015 (CB 113 to CB 116 and CB 134 to CB 137). The applicant’s then representative provided further submissions and country information to the Tribunal after the hearing, on 4 December 2015 (the submissions were dated 3 December 2015) (CB 202 to CB 243).

5. The Tribunal affirmed the delegate’s decision on 8 April 2016 (CB 302 to CB 342). The applicant has summarised the Tribunal’s findings as follows ([13] – [30] of the applicant’s written submissions):

   “[13] After setting out the applicant's claims and evidence, the operative part of the Tribunal's decision commenced at [60] with the heading, ‘Findings and Reasons’.

   [14] The Tribunal from [60]-[79] assessed the applicant's claims and evidence in some detail.

   [15] In relation to his ‘Claims to fear harm in Pakistan’, the Tribunal at [65]-[75] expressed some misgivings, but at [75] it gave the applicant the benefit of the doubt and accepted some, but not all, of his claims about past events in Pakistan, making the following findings:

   (a) The applicant commenced a relationship with a Shi'a Muslim woman in early-mid 2012, which his family did not know about.

   (b) He decided to become a Shi'a Muslim in order to convince her family to allow them to marry, and, in November 2012, he participated in a ceremony in an Imam Bargah in Sargodha for the purpose of becoming a Shi'a Muslim.

   (c) Her father and brothers were opposed to the relationship and, in about late November 2012, one of her brothers confronted them at an Ice Cream Cafe in Sargodha and slapped the applicant across the face and told him to stay away from his sister. He did not see his girlfriend again after that day.

   (d) On about 4 December 2012, the applicant was attacked by four men who were agents of his girlfriend's family, who beat him and told him to stay away from her or suffer the consequences. He received treatment for his injuries in hospital and was discharged the same day.

   (e) On about 5 December 2012, a local daily paper in Sargodha, The Rafaqat, published a report which named the applicant and his father and referred to his relationship with a Shi'a woman, his conversion to Shi'a Islam, and the attack on him by unidentified men.

   [16] With regard to the applicant's claims about the hostility of his local Sunni community to his conversion to Shi'a Islam, the Tribunal at [76] again expressed some doubt, but concluded it to be "not far-fetched" that a conversion of a Sunni Muslim to Shi'a Islam would not be tolerated by local Sunni extremists if they were aware of the matter and it made the following findings:

   (a) Following publication of The Rafaqat report, people in his local area became aware of his conversion and contacted his father and made threats to the family about the applicant's conversion.

   (b) About 10 days after the publication of The Rafaqat report, he was riding his motorbike on the road between the city and his village when a car came up beside him and he saw a man in the car holding a gun and he swerved off the road and fell into the ditch. He did not know who the men were. He received treatment for his injuries in hospital and was discharged the same day.

   (c) Following that incident, his father drove him to his uncle's house in Pandoriyaan and the applicant did not return to Sargodha again. He stayed in Pandoriyaan for about three weeks and then went to Faisalabad where he stayed with another uncle for about four weeks and then went to Lahore where he stayed until his departure to Australia in early April 2013.

   [17] The Tribunal, at [77]-[78], did not accept that the applicant was pursued outside his home area by members of his local village or anyone else, or that his uncle in Pandoriyaan was asked questions by an unknown man or attacked by unknown men, or that any family member outside Sargodha had been questioned or asked about him at any time.

   [18] At [79] the Tribunal expressed further concern about the applicant's claim that a group of unknown men came to his family home in June 2013; however it again gave him the benefit of the doubt and found that in about early June 2013 unknown men had come to his father's house and asked where the applicant was and his father told the men that he had left Pakistan; then in early June 2013 when the Rafaqat published the report naming his father, six unknown men came to his father's house and held him down at gunpoint and threatened to harm him if he did not produce his son, and that his father again told them that the applicant had left Pakistan. It also found that the applicant's father subsequently told members of the local village committee that he had disowned the applicant, and that since early June 2013 his family had not been asked about the applicant. It found at no point in time had the applicant's parents or other relatives been contacted by a member of his former girlfriend's family or their agents, and that the applicant had had no contact with his former girlfriend since December 2012.

   [19] Under the heading, ‘Does the applicant have a well-founded fear of persecution on return?’, the Tribunal from [82] made the following findings:

   (a) At [82] it dismissed the claims relating to the family of his ex-girlfriend ‘remote and far-fetched’.

   (b) At [83]-[90] dealt with the applicant's claims relating to his conversion to Shi'a Islam, concluding, at [90]:

   ... the Tribunal accepts that, in the event he returned to his home area of Chak 98 in the reasonably foreseeable future, his presence would come to the attention of those persons who had an adverse interest in him in late 2012 and that there is a small but nonetheless real chance that he would be subjected to serious harm for reasons of his conversion to Shi'a Islam.

   (c) At [91 ]-[92] the Tribunal turned to the issue of State protection finding, at [93]:

   … the applicant's fears of being persecuted in his home area of Chak 98 in Sargodha in the reasonably foreseeable future are well-founded.

   [20] The Tribunal, from [94] then considered the issue of relocation.

   [21] From [96]-[103] the Tribunal first considered the applicant's claim to be at risk of persecution because of his conversion to Shi'a Islam. At [96] it referred to his fear that he would be pursued throughout Pakistan by Sunni extremists, noting that this was not supported by the country information. On this issue it found, at [97]:

   …on the evidence before it, the Tribunal does not accept there is a real chance or an appreciable risk that the applicant would suffer serious harm from the conservative Sunni Muslims with extremist views he faces a real chance of being harmed by in his home area of Chak 98, outside Sargodha. Nor for all of the above reason does the Tribunal accept on the evidence before it that his name is on a list of people held by an extremist Sunni Muslim group such as LeJ or the Taliban or SSP, or any other person or group, or that any such group or person would currently be aware of him or that they would pursue him or track him down or take steps to locate him outside Sargodha in the event he returned to Pakistan in the reasonably foreseeable future.

   [22] The Tribunal at [99] said that the applicant could also relocate to a faraway place, such as to Hyderabad, which is more than 1,000 kilometres from Sargodha, where he would not be known, and "in such circumstances it is difficult to understand how any person would know he is a convert from Sunni Islam". It also rejected the applicant's contentions that the people in his home area would track him down wherever he went, and that he would have to live ‘secretly’. At [100] it noted country information that most Pakistani Shi'as are not physically, linguistically or legally distinguishable from Pakistani Sunnis, and it found that the chance of his conversion coming to the attention of people in Hyderabad, or any other place outside Sargodha where he is not known, to be 'remote and farfetched’.

   [23] At [101] the Tribunal also rejected the applicant claim that he would have to modify his conduct to avoid bringing his conversion to the attention of other people, noting that he had not claimed to be a devout or particularly religious person but had converted for "love", finding at [102] that he would not wish to talk to people about his religious views or beliefs or practice or about his conversion.

   [24] From [104] the Tribunal then considered the applicant's claim to be at risk simply because he is a Shi'a Muslim. Once again, with reference to the country information, the Tribunal noted that Shi'a Muslims comprise about 20% of Pakistan's population, that there are large Shi’a communities in urban centres throughout Pakistan and no legal restrictions on freedom of religion for Shi'as in Pakistan, nor any laws or Government policies that discriminate against Shi'as. At [106] it referred to country information on sectarian violence in Pakistan, noting, at [107], that the available information does not indicate that all Shi'a Muslims in Pakistan are at risk of harm, although that the risks are higher for Shi'as with certain profiles, such as clerics and activists, and in certain areas of the country. At [108]-[110] it made further reference to country information, before finding, at [111]-[113], that there was no real chance that the applicant would suffer serious harm as a result of Sunni-Shi'a sectarian violence if he returns to Pakistan now or in the reasonably foreseeable future, or that he would be subjected to serious harm for reasons of his Shi'a faith.

   [25] The Tribunal at [114] also rejected the applicant's claim that he would be discriminated against in Hyderabad or some other place outside Sargodha because he is a Punjabi, finding that there was nothing in the country information to support this claim.

   [26] The Tribunal at [115] considered and rejected the applicant's "indirectly" raised claim that he may be subjected to abduction or kidnapping or some other form of violence.

   [27] On the issue of relocation the Tribunal concluded, at [117]:

   For all of the above reasons, on the evidence before it, and after considering the applicant's circumstances individually and cumulatively, the Tribunal does not accept there is a real chance or an appreciable risk that the applicant would suffer serious harm for reasons of his religious beliefs, practice or identity, or his actual or imputed political opinion, his membership of a particular social group, or any other Convention reason, in the event he returned to Pakistan in the reasonably foreseeable future and resides in Hyderabad or some other place outside Sargodha in the Punjab or in the Sindh.

   [28] The Tribunal from [118] turned to the reasonableness of the applicant relocating before concluding, at [126]:

   Having carefully considered his particular circumstances, the Tribunal considers that as a Punjabi Shi'a Muslim who can speak Urdu and Punjabi and some English and Hindi, who is educated and has some work experience, who has been able to adapt to life in a foreign country such as Australia, who comes from a relatively wealthy family who are supportive of him and his situation, it would be reasonable and practicable for the applicant to relocate to Hyderabad or one of the other large towns or cities in the Sindh or Punjab if he returned to Pakistan. In making this finding the Tribunal has considered his implied claim that he would not be able to find work in Pakistan as he had in Australia; however, while it accepts that he might not be able to receive the same type of work in Pakistan as he had in Australia, the information before the Tribunal does not indicate and the Tribunal does not accept that he would suffer harm or be discriminated against in being denied access to or not being able to engage in study or employment and it does not accept that on the available evidence and information those factors would make relocation not reasonable for him in his particular circumstances.

   [29] At [127]-[128] the Tribunal concluded that the applicant did not have a well-founded fear of persecution in Pakistan, and does not therefore satisfy the criterion in s.36(2)(a) of the Act.

   [30] At [129]-134] the Tribunal found, for the same reasons, that the applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Act.”

The application to the Court

1. The amended application to the Court contains a single ground. It is in the following terms:

   “When making the finding that the applicant could safely relocate to an area in Pakistan outside his home town, the second respondent failed to consider or to make findings on the applicant’s claim and supporting evidence to the effect that he would be discovered and pursued by terrorist sympathisers who had corruptly infiltrated the National Database and Registration Authority (NADRA) kept by the Pakistani authorities.”

2. As set out above, the Tribunal accepted that the applicant had converted to Shi’a Islam and that this had been reported in the newspaper in his local area (the village of “Chak 98” in Sargodha).

3. Based on country information, the Tribunal found that for people who had converted to Shi’a Islam, risks of harm would come from extremist members of the local community or the convert’s family who had found out about the conversion ([88] at CB 326). The latter did not apply to the applicant’s circumstances.

4. The Tribunal accepted that the newspaper report written about the applicant had come to the attention of conservative and extremist Sunni Muslims in the applicant’s local area, and that the applicant and his family had been threatened by them since 2012.  On this basis, the Tribunal reasoned that there was a real chance that he would be the subject of serious harm in his local area ([90] at CB 326 to CB 327).

5. However, the Tribunal found that the applicant would not suffer serious harm outside of his local area due to his conversion to Shi’a Islam, and that he could reasonably, and safely, relocate outside this area if he were to return to Pakistan, for example, if he were to go to Hyderabad

   
   

   ([98] – [99] at CB 328).

6. The sole ground of the amended application asserts legal error on the part of the Tribunal in its consideration on the matter of relocation. The ground asserts that the Tribunal failed to consider the applicant’s claim that he would be “discovered and pursued” by “terrorist sympathisers” who had infiltrated the “National Database and Registration Authority” (“the NADRA”) maintained by the Pakistani authorities.

7. Before the Court, the applicant submitted that his claim to fear harm before the Tribunal was not limited to fear harm from people in his local area.  Rather, that he claimed to fear harm from Sunni extremists who had “infiltrated” the NADRA, and therefore would be able to locate him elsewhere in Pakistan. This is the focus of the sole ground of the amended application.

8. The applicant’s argument directed attention to what exactly the applicant had claimed in his protection visa application, and before the Tribunal.

9. As noted above, in a statement accompanying his protection visa application, the applicant claimed, amongst other matters, that he and his family had received threats which were made against him, and that he was then threatened by “five people” in a car, one of whom had a firearm, and fired it at him. He left his local area and went to stay with a relative in Pandoriyaan, which is approximately 150 kilometres from Sarghoda (see CB 27 to CB 33).

10. After he left Sarghoda, the applicant was told by his father that “8-9 people” came to the family home, “holding knives” and looking for the applicant.  They made threats against the applicant (CB 31.4).

11. Some weeks later, a neighbour of the relatives with whom the applicant was staying in Pandoriyaan reported that a “stranger” was asking about any “new person/young boy living in their neighbourhood”.  The applicant understood that “someone was searching for me in this area” (CB 31.6).

12. The applicant left Pandoriyaan and moved to Faisalabad to stay with his “other relative”.  Two days after he left, seven people came to his uncle’s house in Pandoriyaan looking for him (CB 31.7).

13. In the same statement, the applicant stated (CB 32.7):

    “…After this alarming threat of religious parties and silence of police, I feel very unsafe to ever go back and stay anywhere in Pakistan.

    
    They

    are very dangerous people and brutal killing for sake of religion is common practise for them. They have very strong lobby in Pakistan and their own people are working in all departments of Government.

    
    

    Considering their strong influence in public and private sector, I am sure they can find me anywhere in Pakistan if I will ever decide to go back. In Pakistan most of the department are linked to high Tech NADRA (National Database and Registration Authority) system, where they can easily locate my address or location if I will open any bank account, register electricity or gas connection, voter registration, renting house or working in any private or public sector…”

    [Emphasis added.]

14. The applicant’s submissions before the Court were that before the Tribunal, the applicant “formulated [his] case much more broadly than ‘they’ being local Sunni extremists”.

15. In essence, to make good that proposition, the applicant pointed to the following.

16. One, in submissions made to the Tribunal dated 4 November 2015, the applicant’s then representative stated ([31] – [34] at CB 124):

    “[31] As the government is not able to protect Shi’as, the best option for Shi’a Muslims is to leave Pakistan [6]

    [32] In addition to this several sources indicate that there has been an increase in violent attacks against Shi’a by militant groups.

    [33] Attacks against Shi’a reportedly occur in all regions of Pakistan [9].

    [34] Extremists conducts targeted attacks on converted Shi’a-Muslims (e.g. two Shi’a-Islam converted brothers slaughtered in Sarghoda (Sarghoda is my birth city) [12].”

17. Two, in the same document ([45] – [47] at CB 125):

    “[45] Several sources also state that government efforts to address violence against Shi’a have not been sufficient (Jinnah Institute 2013, 23; US Apr. 2013, 119; AHRC 8 Feb.2012).

    [46] In their annual report for 2012, the US Commission on International Religious Freedom describes the response of the Pakistani government to violent attacks against Shi’a as ‘grossly inadequate’ (US Apr.2013, 120). Similarly, the Jinnah Institute said there is a ‘lack of political will’ to address violence against Shi’a (Jinnah Institute 2013, 23).

    [47] The Jinnah Institute representative stated that there is ‘no protection against targeted killings’ of Shi’a and that the Pakistani government ‘generally has not done much, does not take responsibility, and seems unwilling to take action (Ibid. 16 Dec. 2013).”

18. In submissions before the Court, the “broadening” of the applicant’s claim was said to be a “more general suggestion” that the applicant was in danger of being targeted as a Shi’a Muslim, by extremists, at “places like Hyderabad”.

19. The submission was that this “broadening” “crystallised” at the hearing before the Tribunal.  First, in a document handed upon behalf of the applicant at the Tribunal hearing was a “long list” of Shi’a Muslims killed in Pakistan from 1947 (see CB 138 to CB 179).

20. Second, in his written submissions to the Court, the applicant referred to various exchanges that occurred towards the end of the Tribunal hearing.  However, in my view, the applicant’s references lack context and can be seen as being selective.  Therefore, I have extracted the entire exchanges, where relevant, on the issue of harm from extremist groups, and relocation, and have highlighted those parts relied on now by the applicant in his written submissions.

21. These exchanges are as follows (T57, line 15 to T65 line 5):

    “[MEMBER] Now, it's been three years now since you left Sargodha. What do you think would happen if you returned to Pakistan, but did not go to Sargodha but instead returned and lived somewhere else? What do you think would happen, for example, if you moved somewhere very far away, such as Hyderabad, which I think is about 1,000 kilometres away?

    APPLICANT: Over there, the - the organisation which is after me and who want to kill me, they - they could find me. If - they could find me in any part of Pakistan. They have got their own people in every department. I don't know who - who those people are, but they have got people in every department.

    MEMBER: Well, why - you need to explain to me how you think it would be that three or more years later, if you were to move somewhere so far away, anyone would even know you were there who knew about what had happened in Sargodha?

    APPLICANT: Because they have - they have already decided that the - they have a duty of holy war against me and because, like, whatever I have done, and I have become - like, they said that, ‘He has become infidel,’ so they have to kill me. And, like, if I were to return to Pakistan and, like, when I will exit from the airport they will come to know that I have returned. And, like, if I have to go anywhere, like - and, I have to get anything like a bank account, or I have to get my ID, like, they will come to know because they have got their people in every department.

    MEMBER: Well, that suggests that somehow there's a list that these people have, and your name's on a list of people they're after.

    APPLICANT: Definitely, because they are looking for the people who have done something different, like I did, like I have converted to Shi'a. So - and, they are leaving a lesson for the next generation.

    MEMBER: All right. I'm not aware of any independent reports to suggest the existence of such a list, or that group such as LEJ or the Taliban, or any of those radical groups, chase people in the circumstances you're describing.

    Now, the reports of people who convert or change their practice of Islam from Sunni to Shi'a, it seems that people in the past that there were reports about who have had - been mistreated, they usually occur within their very local community, form families or a particular religious figure or a person who does not like what they have done, and they seem to be very local issues. I'm not aware of any reports of anyone - or any suggestion in reports of what you describe as being what you think would happen to you if you went back.

    On one view it seems to be farfetched and remote to consider that if you went back and lived somewhere very far away, such as Hyderabad, that these religious groups, as you say, would still have an adverse interest in you and would track you down and use their contacts in government departments to locate you. I'm not saying I don't believe it would happen, I'm just saying on one view it seems farfetched to consider there's a real chance that would happen. What do you say? Can you explain to me more about how you think it would happen?

    APPLICANT: I'm their target, so they - they can find me at any time or anywhere. So, like, they will find me.

    MEMBER: Apart from that happening what do you think would happen to you - if that didn't happen, if they weren't able to trace you or track you down, if you moved to Hyderabad, for example, do you have any other fears of anything happening to you there?

    APPLICANT: I've got fear of my live, and they have attacked me and they tried to kill me. So, like, if I were to return to Pakistan anything could happen.

    MEMBER: All right. But - but, I keep using that example of Hyderabad, and the reason I do is because it's, I think, the fifth or sixth largest city in Pakistan? It's a - there's a lot of work opportunities there, it's a commercial hub, it's an agricultural hub. It's also, in some reports, described as being the most ethnically- well, maybe not ethnically, but the most religiously diverse place in Pakistan. I think it has the largest Hindu population in Pakistan and, I said, it's, I think, more than 1,000 kilometres away from Sargodha.

    So, if you were to go there and live there and not return to Sargodha, putting to one side your claim that these Sunni extremist groups from Sargodha are going to trace you and track you down and find you - so, assuming the people in Hyderabad did not know about your past, what - why do you think anything would happen to you if you went and lived there?

    APPLICANT: Because, if I were to return I have to get everything. Like, I have to - to get, definitely, my ID card, I need to get a bank account, my passport. So, like, they- they will come to know. And, even I - what I believed that- when I will reach and when I will exit from the airport I feel like they will come to know.

    MEMBER: All right. Okay. So, as I said, just putting that to one side for now, apart from these people who you say would trace you and track you down if you went to live in another part of the country, is there any other reason you think you would be at risk of harm in somewhere like Hyderabad?

    APPLICANT: Shi'as are attacked everywhere in Pakistan. And, if they couldn't find me, or they don't come to know, or they don't know where I am, but, like, the Shi'as are attacked in everywhere, so I will be struck somewhere else.

    MEMBER: So, you say just because you've become a Shi'a Muslim you'd be at risk of harm if you went to live somewhere such as Hyderabad?

    APPLICANT: Yes.

    MEMBER: How would anyone know that you're a Shi'a Muslim if you went and live in Hyderabad?

    APPLICANT: Because I have to practice, I have to go to Imam Bargah on, like, on our specific days we - I have to go there. And, like, the Imam Bargah's are attacked anyway. And, like, the - when the people - people come together and, like, there are attacks.

    MEMBER: All right. So, you say that you would be identified as being a Shi'a when you went to the Imam Bargah on special days for processions or those types of occasions?

    APPLICANT: Yes.

    MEMBER: All right. Now, as I said before, independent reports indicate that the number of Shi'a Muslims, and it's probably not exactly precise, but are about 20 percent of the population of Pakistan. Now, the Pakistan population is somewhere around 180 million people, it's probably closer to 200. So, that indicates the Shi'a population is anywhere between 35 and 40 million people. That's a - that's a very large group of people, even if it might be considered, on one view, a minority religious practice in the country.

    Now, there are reports of attacks against Shi'as, as you've said, but the majority of those attacks have occurred in certain areas of the country. It seems, on one view, the majority of the violence against Shi'as has occurred in places such as Baluchistan in Quetta, and up in the tribal areas in the north and the north-west of the country, and in some parts of Karachi. So, it seems on the whole, outside of those areas, the majority of Shi'a Muslims live in what you could say harmony in their local communities and don't experience any violence. Do you want to make any comment in response to that?

    APPLICANT: Shi'as are attacked everywhere in Pakistan and, like, the main - main people of the Shi'a community, like the scholars and the reciters, they are targeted. And, even in my area, Sargodha, they been, like, targeted. And, recently there were the two brothers who converted to Shi'a, and they been killed.

    REPRESENTATIVE: Member, could I say something?

    MEMBER: Sure.

    REPRESENTATIVE: Look, he provided me with this earlier. I didn't hand it up to you, but it's - it's basically a list from a website of - of atrocities against Shi'a...

    …

    APPLICANT: Because, the first - first thing is that if I were to return to Pakistan like they - they will come to know. I don't know how – how they will do that, and I know that they - there isn't any such list or anything, but I don't know, but they- maybe they have some - if even they don't have any such system, but they have all their people and they can come to know.

    …

    APPLICANT: They- they are got such a strong network, and they – they have got their people everywhere. And, for - for example, like, if - if I were to return and I - I exit from the airport and they could know from there that this - the airport people, they will know that such a person has returned. And, that- that person he - he knows me and he knows that I have converted to Shi'a, and he is very close to that organisation so, like, he will inform that such person has returned.

    …

    [MEMBER]: It seems there's no official discrimination or persecution of Shi'as from the government or any official groups in Pakistan, and there's no official or legal restrictions upon a Shi'a Muslim practicing their religion in Pakistan. And, it seems, mostly speaking, and not all parts of the country but certainly in Hyderabad and other cities away from Baluchistan and the northwest it seems that Shi'a Muslims generally have no community prejudice from other Muslims.”

    [Those parts of the transcript relied upon by the applicant are emphasised in bold.]

22. The applicant’s argument was that his relevant claim was that he feared harm because of his conversion to Shi’a Islam.  Prior to the Tribunal hearing, the harm feared was said to be from extremists in his local area who could locate the applicant anywhere in Pakistan, and would use the NADRA for that purpose.

23. The assertion now before the Court is that at the Tribunal hearing, this was “broadened” to include a fear of harm from extremists in other parts of Pakistan.

24. Following the Tribunal hearing, the applicant’s then representative made further submissions dated 3 December 2015 (“the post hearing submissions”) (CB 202 to CB 206).  The following parts of those submissions are relied on now by the applicant:

    a)One (CB 202.6):

    “We wish to make the following submissions regarding the possibility of the applicant relocating within Pakistan.

    [1] At the hearing the member raised the possibility of the applicant relocating to Hyderabad…”

    b)Two ([12] – [15] at CB 203):

    “[12] Should the applicant return to Pakistan he would need to register his details with NADRA.

    [13] It is clear from widespread reports that extensive corruption exists among NADRA staff.

    [14] This has been demonstrated by terrorists being found to have been issued with identity cards.

    [15] Some press articles suggest that staff at NADRA may include terrorist sympathisers.”

25. The applicant’s submission before the Court was that in the post hearing submissions, there was a “direct reference” to “people who might harm the applicant other than those pursuing him from his home area”. It was not entirely clear in submissions before the Court whether this was said to be terrorists, or terrorist sympathisers, who had infiltrated the NADRA, local extremists who had contacts in the NADRA, or extremists in Pakistan generally.

26. The applicant’s evidence as set out in his statement accompanying his protection visa application, and his evidence at the Tribunal hearing, was that he feared harm from Sunni extremists in his local area.  His statement made clear that he claimed that “they” (in context, the local Sunni extremists) would find him “anywhere in Pakistan” through their access to, and use of, the NADRA, and their contacts in government departments (CB 32.8).

27. At the Tribunal hearing, the applicant’s claim was that these extremists “have all their people” everywhere in Pakistan and they would “come to know” that he had returned to Pakistan (T61 line 45, to T62 line 1).  That is, the local extremists had a “strong network” “everywhere” in Pakistan, including at the airport, and would therefore know he had returned (T62 line 18).

28. In all therefore, on the evidence, the applicant’s claim up to, and including, the Tribunal hearing, was that he feared harm from local Sunni extremists who would be able to locate him, through the use of contacts and their “network” throughout Pakistan.

29. Before the Court, the applicant’s argument also appeared to be that the post hearing submissions “broadened” this claim.  That is, “terrorists” (other than those from his local area) had “infiltrated” the NADRA, which was a corrupt organisation. This was therefore said to be another group from whom he feared harm, and the Tribunal did not address this aspect of his claim.

30. I note here, again, that the sole ground of the amended application was that the Tribunal had failed to consider that the applicant would be pursued by terrorist sympathisers who had corruptly “infiltrated” the NADRA.

1. The explanation of this ground before the Court was not clear. At times, the complaint appeared to be that the applicant’s claim was broadened to include local extremists who would find him anywhere in Pakistan because of their contacts with extremists in the NADRA, or that the “broadening” of the claim was to include extremists, or terrorists, outside of the local area, who had “infiltrated” the NADRA. Alternatively, that complaint appeared to be that the applicant broadened his claim to fear harm generally from extremists everywhere in Pakistan. If the latter, this was not actually pleaded in the sole ground of the amended application (see further below).

2. This therefore directs attention, again, to what the applicant actually claimed in his protection visa application, and before the Tribunal.

3. In particular, in light of the ground as pleaded, it is important to note the actual claim as expressed in the post hearing submissions.  Those submissions stated as follows. If the applicant were to return to Pakistan, he would need to register his details with the NADRA.  Extensive corruption existed within the NADRA staff.  There were suggestions in “press articles” that the NADRA staff included “terrorist sympathisers”, and the corruption in NADRA was “demonstrated” by “terrorists being found to have been issued with identity cards” ([14] – [15] at CB 203).

4. I do not agree with the applicant’s submission now that a reasonable inference can be drawn from this that the applicant had “broadened” his claim to include a fear of harm from “terrorists or terrorist sympathisers” generally, who had infiltrated the NADRA.

5. On a fair reading of the post hearing submissions, the claims expressed there were consistent with the applicant’s expression of his own claims in his written statement, and oral evidence, at the Tribunal hearing. In the post hearing submissions, the applicant’s then representative was seeking to emphasise that part of the applicant’s own evidence that the local extremists would be able to locate him anywhere in Pakistan.

6. In the post hearing submissions this was said by the then representative to be because the applicant would have to register his details with the NADRA, which was a corrupt organisation, and was therefore susceptible, or amenable, to providing the applicant’s details to the local Sunni extremists, who would then be able to locate the applicant anywhere in Pakistan.

7. This was made abundantly clear at [16] (at CB 204) of the post hearing submissions:

   “Bearing in mind the problems with NADRA it is not far-fetched to suggest that the Sunni extremists pursuing him could (through a bribe or through a sympathiser in NADRA) use the NADRA database to track him down then kill him.”

8. The references to “terrorists” and “terrorist sympathisers” in the post hearing submissions, when plainly read, and certainly when read in context, were to illustrate, if not emphasise, the corruption endemic in the NADRA.  Corruption which the applicant’s then representative said was “demonstrated” by identity cards being issued to “terrorists”.

9. It is not possible to draw any reasonable inference that the applicant, through his then representative, was seeking to “broaden” his claim to include a fear of harm from “terrorists”, or “terrorist sympathisers” generally, and who had infiltrated the NADRA (and were from outside his local area).

10. The post hearing submissions make clear that the harm feared by the applicant continued to emanate from “the Sunni extremists pursuing him” (in the context of the applicant’s own evidence, the local Sunni extremists who had sympathisers throughout Pakistan), and that either through a bribe, or a sympathiser in the NADRA, which was subject to corruption, they would be able to “track him down” ([16] at CB 204).

11. At the Tribunal hearing, the applicant himself made clear his explanation for his claim to fear harm. This followed questions from the Tribunal which focused on the details of this claim.  This was as follows (T57 line 7 to T58 line 29):

    “MEMBER: All right. So, if l was to accept everything that you've said, on one view of - I might accept that if you went back to your village, because of what had happened in the past that you might face a risk of harm there, from the people who knew what had happened. Now, as I said at the beginning of the hearing, if I was - if I did accept that I would have to consider whether the risk you would face in your local area extended throughout the country.

    “[MEMBER] Now, it's been three years now since you left Sargodha. What do you think would happen if you returned to Pakistan, but did not go to Sargodha but instead returned and lived somewhere else? What do you think would happen, for example, if you moved somewhere very far away, such as Hyderabad, which I think is about 1,000 kilometres away?

    APPLICANT: Over there, the - the organisation which is after me and who want to kill me, they - they could find me. If - they could find me in any part of Pakistan. They have got their own people in every department. I don't know who - who those people are, but they have got people in every department.

    MEMBER: Well, why - you need to explain to me how you think it would be that three or more years later, if you were to move somewhere so far away, anyone would even know you were there who knew about what had happened in Sargodha?

    APPLICANT: Because they have - they have already decided that the - they have a duty of holy war against me and because, like, whatever I have done, and I have become - like, they said that, ‘He has become infidel,’ so they have to kill me. And, like, if I were to return to Pakistan and, like, when I will exit from the airport they will come to know that I have returned. And, like, if I have to go anywhere, like - and, I have to get anything like a bank account, or I have to get my ID, like, they will come to know because they have got their people in every department.

    MEMBER: Well, that suggests that somehow there's a list that these people have, and your name's on a list of people they're after.

    APPLICANT: Definitely, because they are looking for the people who have done something different, like I did, like I have converted to Shi'a. So - and, they are leaving a lesson for the next generation.

    MEMBER: All right. I'm not aware of any independent reports to suggest the existence of such a list, or that group such as LEJ or the Taliban, or any of those radical groups, chase people in the circumstances you're describing.

    Now, the reports of people who convert or change their practice of Islam from Sunni to Shi'a, it seems that people in the past that there were reports about who have had - been mistreated, they usually occur within their very local community, form families or a particular religious figure or a person who does not like what they have done, and they seem to be very local issues. I'm not aware of any reports of anyone - or any suggestion in reports of what you describe as being what you think would happen to you if you went back.

    On one view it seems to be farfetched and remote to consider that if you went back and lived somewhere very far away, such as Hyderabad, that these religious groups, as you say, would still have an adverse interest in you and would track you down and use their contacts in government departments to locate you. I'm not saying I don't believe it would happen, I'm just saying on one view it seems farfetched to consider there's a real chance that would happen. What do you say? Can you explain to me more about how you think it would happen?

    APPLICANT: I'm their target, so they - they can find me at any time or anywhere. So, like, they will find me.”

    [Emphasis added.]

12. When read in context, the references to “they” and “their” in this part of the transcript are references to the local Sunni extremists.

13. The Tribunal member then raised the specific issue of what the applicant feared if he were to relocate to Hyderabad (T58 lines 31 to T59 line 16):

    “MEMBER: Apart from that happening what do you think would happen to you - if that didn't happen, if they weren't able to trace you or track you down, if you moved to Hyderabad, for example, do you have any other fears of anything happening to you there?

    APPLICANT: I've got fear of my live, and they have attacked me and they tried to kill me. So, like, if I were to return to Pakistan anything could happen.

    MEMBER: All right. But - but, I keep using that example of Hyderabad, and the reason I do is because it's, I think, the fifth or sixth largest city in Pakistan? It's a - there's a lot of work opportunities there, it's a commercial hub, it's an agricultural hub. It's also, in some reports, described as being the most ethnically- well, maybe not ethnically, but the most religiously diverse place in Pakistan. I think it has the largest Hindu population in Pakistan and, I said, it's, I think, more than 1,000 kilometres away from Sargodha.

    So, if you were to go there and live there and not return to Sargodha, putting to one side your claim that these Sunni extremist groups from Sargodha are going to trace you and track you down and find you - so, assuming the people in Hyderabad did not know about your past, what - why do you think anything would happen to you if you went and lived there?

    APPLICANT: Because, if I were to return I have to get everything. Like, I have to - to get, definitely, my ID card, I need to get a bank account, my passport. So, like, they- they will come to know. And, even I - what I believed that- when I will reach and when I will exit from the airport I feel like they will come to know.”

14. Again, at this point, the applicant’s evidence as to his claim is focused on the claim to fear harm from local Sunni extremists anywhere in Pakistan.  The Tribunal, properly, pressed the applicant as to what other fear, or source of fear, he may have if he were to relocate to Hyderabad.  The applicant stated (T59 lines 24 to 27):

    “APPLICANT: Shi'as are attacked everywhere in Pakistan. And, if they couldn't find me, or they don't come to know, or they don't know where I am, but, like, the Shi'as are attacked in everywhere, so I will be struck somewhere else.”

15. The Tribunal then sought to clarify the applicant’s claim in this regard (T59 line 29 to T60 line 1):

    “MEMBER: So, you say just because you've become a Shi'a Muslim you'd be at risk of harm if you went to live somewhere such as Hyderabad?

    APPLICANT: Yes.

    MEMBER: How would anyone know that you're a Shi'a Muslim if you went and live in Hyderabad?

    APPLICANT: Because I have to practice, I have to go to Imam Bargah on, like, on our specific days we - I have to go there. And, like, the Imam Bargah's are attacked anyway. And, like, the - when the people - people come together and, like, there are attacks.

    MEMBER: All right. So, you say that you would be identified as being a Shi'a when you went to the Imam Bargah on special days for processions or those types of occasions?

    APPLICANT: Yes.”

16. It is the case that at the Tribunal hearing, the applicant did “broaden” his claim.  But not in the way now proposed before the Court.

17. With reference to the exchange in the hearing as set out above at [52], it is at about this point that the applicant’s then representative sought to draw the Tribunal member’s attention to the long list of Shi’a Muslims who had been said to have been killed in Pakistan (see CB 138 to CB 179 and see above at [26], [28]).

18. Even in this context, the applicant’s then representative sought to link this more “generalised” fear  of extremists throughout Pakistan to the specific claim to fear harm from local Sunni extremists (T60 line 43 to T61 line 5):

    “REPRESENTATIVE: Just- just generally on the, sort of, critical issue of him being a convert and that making him a target- sorry- the terrifying thing about Pakistan is its total unpredictability, and he rightly points out that he could be tracked, even assuming there's not a list, a death list. Bearing in mind how being a convert is a life and death issue, and the - the very fact that he raised Jihad, it's not farfetched to think that someone from the village could try and track him. Those are my thoughts, Member.”

    [Emphasis added.]

19. I agree with the Minister that the “claim”, as articulated before the Court, was not “broadened” before the Tribunal to include a fear of terrorists, or terrorist sympathisers, or Sunni extremists, beyond the applicant’s local area, who had infiltrated the NADRA.  To be clear, as set out above, the terrorist sympathisers were said, before the Tribunal, to be the vehicle through which the local Sunni extremists would locate the applicant (“track him down”) anywhere in Pakistan.

20. On the evidence before the Court, the applicant made two relevant claims before the Tribunal.  The first was the specific claim to fear harm from local Sunni extremists who would be able to locate him throughout Pakistan (“the specific claim”).  The second was a general claim to fear harm as a Shi’a Muslim anywhere in Pakistan (“the broader claim”).

21. On a fair reading of its decision record, the Tribunal considered both of these claims, and as they specifically related to the issue of relocation.

22. The Tribunal set out the applicant’s claims to fear harm in its decision record under the heading of “Claims to fear harm in Pakistan” (CB 317.7).  At [65] (at CB 317) the Tribunal understood that the applicant claimed to fear harm, relevantly, from “local Sunni extremists” due to his conversion (and from the family of his Shi’a girlfriend).

23. The Tribunal also understood that, “he claims he would be at risk of harm in Sargodha and throughout Pakistan because of his ‘conversion’ to Shi’a Islam” ([65] at CB 317). I note however, as set out above, this is not the “broadened claim” as was described by the applicant before Court.

24. Despite some concerns about the credibility of his claims (I note the delegate had found that the applicant had “manufactured his claims of religious conversion for the purpose of obtaining a visa outcome” (CB 90.3)), the Tribunal accepted that the applicant had converted to Shia Islam, and that people in his local area became aware of the conversion, and threats were made against the applicant as a result ([76] at CB 321).

25. However, the Tribunal did not accept that the applicant had been “pursued outside his home area by members of his local village or anyone else” ([77] at CB 322).

26. Further, it found ([77] – [78] at CB 322):

    “[77] … [The applicant] did not claim to have been pursued outside his home area by the family of his former girlfriend, nor did he claim at the hearing to be at risk of harm from them in the event he returned to Sargodha in the reasonably foreseeable future. As noted above, the Tribunal had a number of concerns about the reliability of his evidence with regard to what happened in Pandoriyaan and what did not happen in Faisalabad or Chak 98, and, in the Tribunal's view, there was no logical or credible reason why, in his particular circumstances, as an 18 year old man who had fallen in love with a Shi'a girl and had briefly attended an Imam Bargah and changed his faith to Shi'a Islam, the people in his village would actively search for him outside the village, as claimed. While the Tribunal is prepared to afford him the benefit of the doubt and accept that some more extreme minded members of his local Sunni community were offended by his actions and sought to harm him in the event he came to their attention, on the evidence before it, it is not prepared to accept that they pursued him outside Sargodha, particularly when they did not contact his family in Faisalabad and did not take action against his family in Chak 98 as a means of locating him. In the Tribunal's view, in circumstances where his evidence did not indicate that he engaged in any pro- Shi'a or anti-Sunni public activities or in any associated political or religious activities or proselytism or in any other activities that would arguably make him a potential threat to the local social and religious order, it is difficult to understand why the people of his village would devote such resources and be so committed to harming the applicant that they would try and locate him outside Sargodha.

    [78] Accordingly, the Tribunal does not accept that he was pursued outside his home area, and it does not accept that his uncle in Pandoriyaan was asked questions by an unknown man who was looking for a recently arrived young man, or that his uncle in Pandoriyaan was attacked by unknown men who asked him questions about the applicant or that his uncle in Pandoriyaan or any other family member outside Sargodha has been questioned or asked about him at any time, either before or after the publication of The Rafaqat report on 5 December 2012.”

27. At this point therefore, the Tribunal considered, and, with reasons, rejected, the applicant’s claim that he would be pursued outside his local area by local Sunni extremists.  This conclusion was reasonably open to the Tribunal on what was before it.  The Tribunal’s reasoning was logical and its findings were probative of the material before it.  Importantly, the findings were comprehensive of the applicant’s claims, as these claims were made to the Tribunal.

28. In relation to the applicant’s claims to fear harm as a consequence of his conversion to Shi’a Islam, the Tribunal specifically addressed the applicant’s claim to fear harm “not just in his home area but throughout Pakistan” ([83] at CB 324).

29. I agree with the Minister’s submission that at [83] (at CB 324) of the Tribunal’s decision record, and following, the Tribunal understood the applicant’s claim to fear harm due to his conversion, not only in his local area, but throughout Pakistan.  The threat of harm was said to emanate from local Sunni extremists, and as the Tribunal recognised, other extremist groups throughout Pakistan.

30. As set out above (at [10]), the Tribunal found on the applicant’s evidence and country information before it, that threats of harm for converts  to Shi’a Islam generally, come from a convert’s “family or extremist members of the local community who become aware of the conversion” ([88] at CB 326).

31. In relation to the applicant’s claim that his name was on a “list” (compiled by extremists) of targets for religious reasons, the Tribunal found, based on country information, and as put to the applicant at the Tribunal hearing, that there was nothing to support the applicant’s claims (and the submissions of his then representative) that there was such a list, or that converts were pursued by extremists outside the local area (see [85] at CB 324 to [87] at CB 325 to CB 326 and, in particular,  [88], [89]  and [90] at CB 326 to CB 327).

32. In the Tribunal’s analysis and findings under the heading of: “Relocation: is there an appreciable risk of [the applicant] being persecuted outside Sargodha” ([94] at CB 327 to [128] at CB 337), it focused, amongst other things, specifically on the claim that the applicant “would be at risk of persecution not just in his home area but throughout Pakistan” ([95] at CB 328).

33. The Tribunal’s analysis and findings here must be read fairly, and contextually in, light of the earlier expressed findings of fact made by the Tribunal.

34. As set out above, the claim involving the NADRA was that the local Sunni extremists would be able to locate the applicant elsewhere in Pakistan by accessing, through their network and corrupt officials, the data held by the NADRA.

35. The Tribunal’s critical finding was that there was nothing on the evidence or information before it to refer to converts to Shi’a Islam being pursued by local extremists outside of their home area ([96] at CB 328).

36. The Tribunal found ([97] at CB 328):

    “In light of its finding that his family have not been contacted about him since June 2013 and that he was not pursued outside Sargodha and did not come to the adverse attention of any person or group outside Sargodha after he left in December 2012, the Tribunal considers the chance that the conservative Sunni Muslims in his local area, who formed an adverse view of him in late 2012, or any other person from his local area, would pursue him or track him down, or take steps to locate him outside Sargodha in the event he returned to Pakistan in the reasonably foreseeable future is remote and far-fetched. Accordingly, on the evidence before it, the Tribunal does not accept there is a real chance or an appreciable risk that the applicant would suffer serious harm from the conservative Sunni Muslims with extremist views he faces a real chance of being harmed by in his home area of Chak 98, outside Sargodha. Nor for all of the above reason does the Tribunal accept on the evidence before it that his name is on a list of people held by an extremist Sunni Muslim group such as LeJ or the Taliban or SSP, or any other person or group, or that any such group or person would currently be aware of him or that they would pursue him or track him down or take steps to locate him outside Sargodha in the event he returned to Pakistan in the reasonably foreseeable future.”

1. I agree with the Minister that when read fairly, and in context of what precedes it, the Tribunal’s findings of fact included that the applicant would not be pursued by the Sunni extremists outside of his local area, and that other groups, outside of his local area, would not be aware of him. Given this finding of fact (which was reasonably open to it on what was before it), it was not necessary for the Tribunal to then go on and separately consider the matter of the local extremists’ claimed use of the NADRA. I note that the Tribunal understood (with reference to [55] at CB 315) that that matter had been raised with it. But ultimately, it was not necessary to pursue it given the factual finding referred to above.

2. As noted above, the “broader” claim was that the applicant faced the risk of harm generally throughout Pakistan due to his conversion to Shi’a Islam. The Tribunal understood this claim (see [83] at CB 324 and paragraph [95] at CB 328, and as referred to above at [53], [56], and

   
   

   [65] – [67]).

3. As to the broader claim, the Tribunal’s reasoning is at [99] (at CB 328 to CB 329) and [100] (at CB 329) of its decision record. Paragraph 100 (at CB 329) is as follows:

   “Having carefully considered the available information and evidence, including the advice from DFAT that 'most Pakistani Shi'as are not physically, linguistically or legally distinguishable from Pakistani Sunnis' , with the exceptions being Hazara, Turi and Bangash Shi'as, in the absence of the applicant telling people that he had been a Sunni and had changed his faith to being a Shi'a Muslim, the Tribunal does not accept that his conversion would be apparent to or would come to the attention of people in Hyderabad or some other city or town in the Sindh or in the Punjab outside Sargodha. The Tribunal notes that information and evidence before it does not indicate how or why the issue of whether he had been a Sunni or that he had converted or changed the practice of his faith, would, absent him raising the issue with other people and talking to people about it, would come to the attention~ of people outside Sargodha. Accordingly, in the absence of any logical or credible basis to consider that his conversion would be apparent to people in Hyderabad or some other place outside of Sargodha where he is not known, the Tribunal considers the chance of his conversion coming to the attention of people in Hyderabad, or any other place outside Sargodha where he is not known, is remote and far-fetched.”

4. The Tribunal ultimately concluded ([113] at CB 333):

   “Accordingly, having carefully considered the available independent information, including the submissions of his migration agent and the reports referred to in those submissions, the Tribunal considers that, in his individual circumstances, there is not a real chance or an appreciable risk that the applicant would suffer serious harm in Hyderabad or some other place outside Sargodha in the Punjab or in the Sindh, for reasons of his Shi'a religious beliefs, practice or identity, in the reasonably foreseeable future. In making this finding the Tribunal has carefully considered the independent information about the levels of generalised violence in various parts of Pakistan, as well as the incidence of targeted violence against the Shi'a community in parts of Pakistan, and the activities of Sunni extremist groups such as the LeJ, Taliban and the SSP. However, in the Tribunal's view, having carefully considered those factors, it does not accept that the applicant, in his circumstances and with his particular attributes and characteristics, faces a real chance of being subjected to or suffering serious harm in Hyderabad or some other place outside Sargodha in the Punjab or in the Sindh.”

5. In all therefore, the Tribunal considered all of the elements of the applicant’s claim to fear harm throughout Pakistan from Sunni extremists due to his conversion.  That is, the harm from local extremists, and whether they would locate him outside his local area, the claimed threat from others generally outside of his local area, and the claim to fear of harm simply for being a Shi’a Islam convert.

6. The NADRA element of the claim, which sits at the core of the sole ground of the amended application, was a part of the applicant’s claim to fear harm from local Sunni extremists and their claimed “reach” beyond the local area. As set out above, the Tribunal’s relevant factual findings made any further specific reference to NADRA otiose.  The sole ground of the amended application is not made out.

Conclusion

1. As the sole ground of the amended application is not made out, the application is to be dismissed.  I will make the appropriate order.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  30 October 2018