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2215120 (Refugee) [2024] AATA 3524 (15 July 2024)

Last Updated: 4 October 2024

2215120 (Refugee) [2024] AATA 3524 (15 July 2024)

DECISION RECORD

CATCHWORDS
REFUGEE – Protection Visa – Pakistan – religion – Shia faith – involvement in foiling the attempted bombing – not satisfied that the applicants face a real chance of being accused of blasphemy – perceived to be Westernised – strong compassionate circumstances – fourth-named applicant is now an Australian citizen – Ministerial intervention – decision under review affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth), s 12(b)
Migration Act 1958, ss 5, 36, 65, 424, 417, 499

Migration Regulations 1994, Schedule 2

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

1. These reasons relate to two related applications for review of decisions made by different delegates of the responsible Minister to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
2. The applicants are a family unit claiming to be unable to return to Pakistan because of their Shia faith. For these reasons, I have concluded that the applicants do not face a real chance of serious harm, and the decision under review should be affirmed.
3. I will refer the applications and these reasons to the Minister for ministerial intervention because I have concluded that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, namely the fourth-named applicant who is now an Australian citizen.

BACKGROUND

4. The applicants are as follows:

(a) the first-named applicant ('SA') is a [age]-year-old female born in Pakistan.

(b) the second-named applicant ('AA') is a [age]-year-old male born in Pakistan.

(c) the third-named applicant ('JAM') is a [age]-year-old male born in Pakistan.

(d) the fourth-named applicant ('KAM') is a male born in Australia and recently turned 10 years old.

(e) the fifth-named applicant ('DZM') is a female born in Australia and is [age] years old.

5. SA and AA are a married couple and the parents of JAM, KAM, and DZM. SA was granted a student visa in March 2010. In May 2010, SA, AA, and JAM arrived in Australia on that visa. KAM was born in [2014]. On [date] 2024, KAM was recognised as an Australian citizen, having acquired Australian citizenship by operation of s 12(b) of the Australian Citizenship Act 2007 (Cth).
6. SA, AA, JAM, and KAM applied for protection visas in April 2015. They were not invited to an interview in connection with their application, which was refused in July 2017. In the same month, SA, AA, JAM, and KAM applied for review.
7. Subsequently, DZM was born in [year]. In September 2018, DZM applied for a protection visa. DZM was not invited to an interview. That application was refused in June 2019. DZM applied to the Tribunal to review that decision [in] 2019. On 5 May 2021, a hearing was held in both applications before a differently constituted Tribunal.
8. On 30 June 2021, the differently constituted Tribunal affirmed both decisions not to grant protection visas to the applicants.
9. Thereafter, the applicants sought judicial review of the Tribunal's decision. That application was successful, and in September 2022, the Court ordered that the Tribunal's decision of 30 June 2021 be quashed and the review application be remitted to the Tribunal.

Remitted review application

10. I note that the Tribunal does not have a copy of the order quashing the Tribunal's decision and remitting the applicants for re-hearing. Yet the orders in the judgment published by the Court (to which the Tribunal was a party having filed a submitting appearance), had two potential issues:

(a) first, the order purported to quash the decision of the Tribunal on 21 October 2021. No such decision exists. The Tribunal's decision was dated 30 June 2021 (as Lucev J recognises in [1] of the reasons). The reference to 21 October 2021 refers to the date the applicants filed an amended application for judicial review.

(b) second, paragraph 3 of the orders requires the redetermination of “the application for review made by the applicants on 17 July 2017” according to law. DZM made her review application in 2019, not in July 2017. The review application made by the DZM is based on a different decision made by the delegate.

11. It appears beyond argument that, subject to the orders contained in the reasons for the decision reflecting the actual orders that were entered, there is an obvious slip or error in the orders that can be corrected. Clearly, the Court intended to quash the decision dated 30 June 2021 and remit both review applications for re-determination. In my view, the orders of Lucev J would be capable of amendment by recourse to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
12. In circumstances where the Tribunal was a party to those proceedings and would be bound by the findings that the decision was affected by jurisdictional error, I can proceed on that basis alone. That is the approach that I have taken.
13. The applicants have provided a copy of the delegate's decision to the Tribunal and a copy of the decision of the differently constituted Tribunal.
14. The applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments.
15. A hearing was held on 14 June 2024 for the applicants to give evidence and make submissions concerning the review applications. The only applicants who appeared before the Tribunal were SA and AA. That is understandable, as the remaining applications are still children. The Tribunal hearing was conducted with an interpreter in Urdu and English.

Judicial review application

1. As already referred to, the applicants successfully sought judicial review of the previous Tribunal decision.^[1]
17. The basis for success was summarised by the applicant's representative in the written submissions lodged with the Tribunal on 5 June 2024 as follows:

    The Tribunal’s decision was remitted back for re-consideration as the Tribunal failed to put [AA] on notice of adverse information during or after the Tribunal hearing of the inconsistent information provided by both the [SA] and [AA] in accordance with either s424A or s424AA of the Migration Act which resulted in the Tribunal Decision to be affected by jurisdictional error. Furthermore, it was found by the Court that the Tribunal failed to consider corroborative evidence from the series of Psychologist reports [dated] 26 January 2021, 4 December 2018 and 26 June 2017 in its assessment of the Applicant’s credibility, but rather, focused on the assessment of the [AA]'s capacity to give evidence in the hearing (footnotes to the Court's decision omitted)

Second tribunal hearing

3. I am not bound by the findings of the previous Tribunal.^[2] In any event, I am permitted to have regard to any record of the proceeding as previously constituted.^[3]
19. At the start of the hearing on 14 June 2024 (the ‘second tribunal hearing’), I indicated to the applicants and their representative that I had listened to the hearing recording before the Tribunal which led to the 30 June 2021 decision and had the benefit of a transcript of that hearing. I indicated that, subject to any objection or submissions, I did not intend to re-traverse all areas of the evidence that the applicants had already given but would, instead, ask questions about some, but not all, aspects of their evidence.
20. Neither the applicants nor their representative, Mr Tran, submitted that I should adopt a different approach.

Post-hearing submissions

21. At the end of the hearing, Mr Tran indicated his preference for written submissions rather than oral submissions in support of the review application. In those circumstances, I permitted Mr Tran additional time to provide written submissions.
22. The applicant’s written submissions were lodged on 27 June 2024. I have considered those submissions. In summary and among other things, those submissions:
    4. notwithstanding the applicants views about the absence of a link between the incidents in 2008 and 2015, maintain that the applicants rely on the submission dated 18 May 2021 about the link between those incidents;^[4]
    5. expressly withdrew the claims related to the travel that AA undertook to [Country 1];^[5]

(c) made submissions about the credibility of the evidence given in respect of the 2008 incidents and the 2015 incident;

(d) made submissions about contemporary country information about the chance of harm for persons in the applicants' position if they returned to Pakistan. I deal further with these submissions below.

23. Further evidence was provided responding to issues raised during the second hearing. That evidence was consistent with the evidence given orally at the hearing.

RELEVANT LAW

24. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person who holds a protection visa of the same class.

Refugee criterion

9. 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 decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.^[6] A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.^[7] Persecution must involve serious harm^[8] and systematic and discriminatory conduct.^[9]
11. A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.^[10] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.^[11] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.

Complementary protection criterion

13. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.^[12] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.^[13] Circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.

Mandatory considerations

15. As directed^[14], I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report^[15].

ANALYSIS, FINDINGS AND REASONS

29. The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or the complementary protection criterion contained in s 36(2)(aa) of the Act.
18. 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.^[16] The Tribunal does not have any responsibility or obligation to specify or establish, or assist an applicant in specifying or establishing, their claims. When assessing the claims made, there is no requirement to uncritically accept any or all of the allegations made.^[17] Rebutting evidence is not required before finding that a particular factual assertion is not made out.^[18]
19. There is a significant amount of evidence before the Tribunal. It is helpfully summarised in the written submissions of the applicant's representative dated 27 June 2024.^[19] I have read and considered all of the documents provided to both the Department and the Tribunal in reaching my decision. I have also considered the oral evidence given by the applicants at the first and second hearings before the Tribunal, together with a transcript of the first hearing before the Tribunal as differently constituted. Ultimately, however, the resolution of these review applications turns on country information.

Credibility

23. The assessment of credibility is an inherently difficult task,^[20] which should be conducted carefully, fairly, and reasonably.^[21] Inconsistencies in an applicant’s account may or may not be significant.^[22] The benefit of the doubt should be given to those who are generally credible but are unable to substantiate all of their claims.^[23]
33. In their written submissions, the applicants cite the Tribunal’s 'Guidelines on Vulnerable Persons' and the guidelines on assessment of credibility. I have taken both of guidelines into consideration.
34. I am prepared to accept that the SA and AA are generally credible witnesses. I am satisfied that they both gave their evidence the best they could and that they gave their evidence as they saw it. I am satisfied that they were measured in their approach to giving evidence, including, for example, making concessions against their interest by indicating that it was unclear whether the attack on AA related to the events at the Imambargah.

Material findings

35. Based on the evidence before the Tribunal, I am satisfied that:

(a) the applicants are Shia Muslims and come from observant Shia families;

(b) SA and AA married in 2005, they are cousins and share a grandmother;

(c) that the grandmother of SA and AA was a prominent Shia figure in the community who was involved with [an organisation] and was a [member] of a local Imambargah located within the same building as a large mosque, Khoja Masjid, located in Kharadar from about 1975 until she died in 2017;

(d) SA was, and had been since she was young, a volunteer at the Imambargah which her grandmother [was a member];

(e) in 2008 SA stopped an attempted bombing by two women with Muhajir accents when she insisted on searching their bags. When the attempted bombers were being lead off by authorities, they shouted threats to seriously harm SA and her family as they were being led off. This attempted bombing lead to security at the Imambargah being increased.

(f) around two weeks after the attempted bombing of the Imambargah, AA was attacked whilst returning from Ashura commemorations. At the time, AA was readily identifiable as a Shia because he was dressed in black to represent his mourning during the Muharram period. During the attack, AA was injured when he was cut by a knife and shot. The gunshot scraped, but did not penetrate, his knee. The persons who attacked AA had Muhajir accents;

(g) after the attackers had fled, AA's brother and friend, [Mr A], came to assist him and took him to a clinic to receive medical attention;

(h) following these attacks, SA and AA were fearful of further harm which resulted in the family moving five times, although AA subsequently, and infrequently, attended the Imambargah, but she no longer worked as a volunteer;

(i) the applicants are unaware of any other attacks, or attempted attacks, on the Khoja Masjid or the Imambargah either before or after the 2008 incident;

(j) SA travelled briefly to Iran for religious purposes in May 2004 and AA visited [Country 1] for nine days in February 2009 for religious purposes;

(k) SA was granted a student visa in March 2010. AA and JAM were dependants on that visa. They did not leave Pakistan right after because of injuries that occurred to JAM around the time of their visa being granted

(l) SA, AA and JAM first arrived in Australia on [date] May 2010. When SA, AA and JAM arrived, they feared harm in Pakistan on account of their faith, but held hope that the situation would improve.;

(m) AA's friend, [Mr A], was shot by a gunman on a motorbike in 2013, although the motivation for the attack is not known;

(n) SA, AA, JAM and KAM returned to Pakistan in February 2015, because their grandmother was unwell. They stayed at the home that they had shared with their grandmother and AA's parents before the 2008 incidents;

(o) whilst in Pakistan, on or about 16 March 2015 they received a letter threatening to kill their children unless they pay 2 million rupees;

(p) on or about 19 March 2015, they received a letter demanding 3 million rupees and threatening to kill the SA, AA and their children as 'Kafir' (infidels) if they did not comply. A bullet accompanied this letter. A telephone call was made to AA with the caller indicating that instructions would be provided shortly;

(q) the applicants went to the Police following the 19 March 2015 letter. They were told it would be investigated and when they followed up the next day, were told the investigation was not yet complete. Police refused AA's request for an armed guard. AA destroyed his sim card to prevent further calls;

(r) the applicants were not the only people who received similar threatening letters around this time also demanding money;

(s) SA and AA did not make any payment as demanded by either letter;

(t) Following these letters, SA, AA, JAM and KAM moved to SA's mother's home and then a friends home until they departed from Pakistan;

(u) SA, AA, JAM and KAM returned to Australia on or about [date] March 2015;

(v) SA, AA, JAM and KAM applied for a protection visa on 9 April 2015;

(w) SA and AA's grandmother died in 2017;

(x) no members of AA's or SA's close families have experienced serious or significant harm because of their Shia religion, their association with the SA and AA, their association with the Imambargah or the Khoja Masjid Mosque;

(y) SA has been diagnosed with Post Traumatic Stress Disorder ('PTSD'), Major Depressive Disorder ('MDD') and Generalised Anxiety Disorder ('GAD') and is prescribed medication to treat her conditions;

(z) both AA and SA have a genuinely held subjective fear of harm of returning to Pakistan because of their identity as Shia Muslims;

Was AA targeted because of SA's involvement in foiling the attempted bombing?

36. A relevant question to the assessment of whether the applicants face a real chance of serious harm in the future is whether AA was targeted because of SA's involvement in foiling the attempted bombing of the Imambargah.
37. In their evidence, both AA and SA, to their credit, conceded that they could not say whether there was a connection between SA's involvement in foiling the bombing attempt and the attack on SA. AA's evidence was that the attack on him might have been motivated because the attackers believed he was Shia because of the manner of his dress.
38. In their written submissions, the applicant's submitted:

    With respect to the connection between the incident on the Shia shrine and the attack on [AA], it is noted that the Applicants did not assert in their evidence that they were sure of such a link, but that such a link was possible, particularly as the perpetrators of both incidents had Mohajir accents. It is submitted that given the attack on [AA] occurred so soon after the incident at the Shia Mosque, it would be reasonable for the Applicants to fear that the second attack may have been motivated by [SA]’s involvement in the first, especially as she was threatened by one of the women after she helped stop them from carrying out the attack.^[24]

25. It is otherwise submitted that it is open to me to conclude that a connection between the two events is a possibility considering the threats made to SA and the "probability that the females" were members of a militant group rather than acting alone. That group is submitted to have been sufficiently well resourced to discover the identity of SA and AA.^[25] The only other links are the proximity in time and the common accents.
40. Whilst I accept that the attack occurred shortly after threats made to SA, the only other connection between the perpetrators was their accent. Suppose both attacks were, as the applicants submit, carried out by members of well-resourced militant group, who were able to identify SA and AA and coordinate a targeted attack on AA. In that case, it is plausible and reasonable to conclude that the militant group would have been able to identify other members of SA and AA's family, including their grandmother.
41. It is also plausible and reasonable to conclude that the militant group would have had the ability and means to attempt, if not carry out, further attacks on the Imambargah, notwithstanding the increased security. Such a militant group would also have had the ability and means to attempt, or carry out, attacks on other members of SA and AA's family. Yet there is no evidence of any such attacks or attempted attacks.
26. I do not accept the submission that family members of targets of militant or extremist groups may not be of interest to those groups and that explains the lack of further reprisal.^[26] I also do not accept the claim that their grandmother was not targeted or harmed following the attempted bombing because of her advanced age. As I raised at the hearing, persons or groups who are willing to carry out bombings of religious targets seek to cause indiscriminate harm. A bomb is a weapon that does not discriminate between young or old, male or female, Shia or Sunni, family member of target or person in the wrong place at the wrong time. I do not accept that it is particularly plausible that a person, or group, that is willing to attack a civilian target, using such an indiscriminate weapon, refrains from targeting elderly people, or related family members, of persons who have wronged them, whether out of some sense of conscience, honour, or otherwise.
43. I am not satisfied that AA was targeted because SA foiled the attempted bombing of the Imambargah or that there was any relevant connection between the attacks. However, I am satisfied that he was targeted because he was identifiable as a Shia. I find that the attack on AA was an opportunistic attack on an identifiable Shia, with AA being the unfortunate victim who was in the wrong place, at the wrong time.
44. I do accept, however, that it was not unreasonable for the applicants to believe or fear that the attacks may have been linked in some way at the time. Their decision to go into effective hiding and often move around is understandable in that context.

Were the applicants targeted in 2015 because of the events in 2008?

27. In this respect, it is submitted that the applicants believe "these incidents of harm are not necessarily linked to each other but rather incidents that occurred as a result of being Shia Muslims in Pakistan."^[27] The evidence is that the applicants were not the only people who received threatening letters in 2015. I accept the submission that the receipt of the threatening letters in 2015 was motivated by the applicants being perceived to be Shia. I am satisfied that the applicants were not specifically targeted with these letters for any reasons related to what had occurred in 2008.

Country information

30. As of 2023, the population of Pakistan is around 241.5 million people.^[28] The Sindh province, where Karachi is located, has around 55.7 million people.^[29] Karachi is home to a population of around 20.3 million people.^[30]

Shia

32. Pakistan’s Muslim population is around 96% of the overall population. It is home to the world’s second-largest Shia population (after Iran), which comprises around 15–20% of the total Muslim population. Other figures put the Shia population in Pakistan at closer to 25–30%.^[31] Significant Shia communities exist in Karachi, Lahore, Rawalpindi, and Islamabad.^[32] Based on this information, I find that the Shia population in Sindh is likely between 8.3 million and 16.7 million people and, in Karachi, the population is between 3 million and 6 million people who identify as Shia.
34. Most Pakistani Shia (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them.^[33] National identity cards do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shia Muslims.^[34]
36. Shia can generally establish places of worship and practise their religion without overt state interference.^[35] The divide between Shia and Sunni has both political and religious aspects. Shia are well-represented in parliament and regularly contest elections for mainstream political parties.^[36]
38. Pakistani police provide security for Shia events.^[37] However, no independent country information has been located which suggests that there is presently any level of official discrimination among the police against Shia. This seems to align with the view that the Shia population in Pakistan is large and dispersed in all walks of life.^[38]
39. As to protection, the UK Home Office assesses that:^[39]

    In regard to Shia Muslims, the state takes action to curtail extremist activities, such as increased security force presence and visibility, restrictions on clerics known for exacerbating sectarian tensions, suspension of cellular services, and heightened security monitoring, particularly in the run-up to and during the month of Muharram. Federal and provincial authorities increase security during Shia religious commemorations, reducing the risk of attack. Military escorts are provided for Shia pilgrims travelling along high-risk roads to and from Iran although they are reported to be infrequent.

    In general, the state is both willing and able to offer effective protection to Shia Muslims. A person’s reluctance to seek protection does not necessarily mean that effective protection is not available.

40. The UK Home Office reports that accounting for the size of the Shia population in Pakistan, a Shia is not likely to face a risk of persecution and/or serious harm from the state that is sufficiently serious, by its nature or repetition, to amount to persecution.^[40]
42. DFAT reports that Shia in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years.^[41] DFAT also assesses that Shia face a moderate risk of societal discrimination in the form of anti-Shia protests and community violence. DFAT also assesses that Hazaras, Turis and Bangash Shia face specific, heightened risks.^[42]

Media suppression / censorship

45. The applicants submit that Pakistan suppresses media coverage about sectarian violence.^[43] Among other things, those submissions refer to a tendency within local media reports in Pakistan to avoid, or minimise, reporting violence against Shia or other minorities. Examples provided include an attack on a mosque in Peshawar in March 2022 where editors sought to remove the words "Shia" and "Imambargah" from their stories because it "was against policy". The submission also refers to the criticism of the editor of Dawn^[44] for reporting that the victims of that attack were Shia^[45], quoting the information minister as having said "do you want Shia-Sunni riots in Pakistan?".
55. I am prepared to accept that reports from in-country sources may be subject to censorship or that in-country new services may be pressured to omit details suggesting that there were religious motivations for attacks. Even so, the article relied on by the applicants does not, in my view, support a conclusion that all media underreport or minimise news about attacks on Shia.

Sectarian violence, terrorism, extremist and militant groups

46. The applicants submit that despite lower statistics of violence in Sindh, country information is showing a rise in sectarian violence in Sindh.^[46] They cite a 2023 report from the Center for Research and Security Studies (‘CRSS’) and refer to a high number of terrorism incidents in Karachi— 63 incidents resulting in 58 fatalities and 68 injuries.
57. The applicants also submit that CRSS reports that throughout its reporting year, sectarian violence has surged alarmingly across Pakistan. They refer to data from CRSS which suggests that in Sindh there were 8 incidents of sectarian violence resulting in 5 fatalities and 25 injuries, representing around 5% of total casualties from sectarian violence in Pakistan.
47. The applicants also refer to information that on 30 March 2024, the bodies of two youths from Balochistan who were forcibly disappeared by authorities in August 2023 were found in Karachi.^[47] They also refer to a suicide bomb attack on a vehicle carrying Japanese nationals and reports that Sipah have threatened to oust the Shia population from Pakistan.
59. The applicants refer to a terror attack in Karachi in May 2024 where an armed group opened fire on a gathering of Shia, the kidnapping of a Shia in May 2024 whose elder brother had disappeared in February 2024, and the kidnapping of a Shia cleric. The applicants also refer to the prospect of tensions being heighted, particularly in the provinces bordering Afghanistan (which I note that Sindh does not).
48. The applicants also refer to a report from the Pak Institute for Peace Studies (‘PIPS’), which reports 8 terror attacks in Sindh in 2022 and 15 in Sindh in 2023.^[48] They also refer to reports by PIPS that sectarian violence has "picked up", with incidents of sectarian violence reported mainly from Karachi.
49. The applicants refer to information about attacks against Shia increasing during Muharram.^[49] It is submitted that the applicants would be readily identifiable as Shia by their name and appearance, generally as well as during Muharram. The submission as to why the applicants would be readily identifiable based on their name is undeveloped and there is no reference to country information that would support that submission. The submission that the applicants would generally be readily identifiable by their appearance is unsupported by evidence specific to them. That said, I accept that the applicants may be readily identifiable during Muharram on account of their dress.
52. In 2021, other than in Punjab, Ashura processions were relatively peaceful.^[50] In recent years, government security procedures have increased for Ashura commemorations, resulting in relatively peaceful processions.^[51] Ashura commemorations in 2023 and 2022 took place peacefully across Pakistan.^[52]
53. The applicants refer to another decision of the Tribunal^[53], where an active and well-known Shia was harassed and threatened by an extremist militant group, Lashkar-e Jhangvi ('LeJ'). That applicant was found to personally face a real chance of persecution involving serious harm from LeJ members or supporters. That decision is somewhat different from the applicants in the present case. There is no credible evidence that they have been specifically targeted. The attack on AA was an opportunistic attack on a person identifiable as a Shia.
64. I note that Pakistan is a large country with different challenges in different locations. Some Shia, such as Hazaras face specific, heightened, risks. In general, I find that the country information suggests that different areas of Pakistan have different risk profiles associated with them for Shia. The situation for Shia in Pakistan varies considerably based on both location and ethnicity. For example, my assessment of the country information suggests that Hazara Shia are at a much greater risk of harm than, say, a Punjabi Shia. The quantitative data also suggests that the risk to Shia in Balochistan and Khyber Pakhtunkhwa is much greater than it is for Shia in Sindh or Punjab.
54. The UK Home Office assess that:^[54]

    Although there have been sporadic targeted attacks against Shia Muslims, relative to the size of the Shia population in Pakistan, they are, in general, unlikely to be subject to treatment or discrimination by non-state actors that is sufficiently serious by its nature or repetition to amount to persecution.

57. The 2022 DFAT Report suggests that, following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021 for several reasons.^[55] Following a six-year downward trend, terrorist attacks increased in 2021.^[56] DFAT reports that:^[57]

    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.

    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).

58. Country information suggests that Pakistani authorities are targeting suspected terrorists and members of banned groups.^[58]
61. Concerning attacks specifically targeting Shia, other than Hazaras, the recent number overall is low and has “steadily declined” since 2013.^[59] In the entire country, there are reports of only five deaths and 14 injured in 2020, compared with 32 deaths in 2019 and 471 deaths in 2013.^[60] DFAT attributes this reduction to an overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shia places of worship and processions.^[61]
62. As to terrorism, CRSS reports in respect of 2022 that:^[62]

    Terrorist violence touched a new height in 2022. From 850 fatalities in 2021, the figure jumped to 980 in 2022 – indicating an over 15 percent rise in violence from as many as 512 terrorist incidents and counter-terror operations. The highest rise in violence was recorded in Khyber Pakhtunkhwa (KP), where fatalities went up from 399 in 2021 to 633 this year – a nearly 59% rise. Balochistan recorded a marginal increase of 1% in violence but it could not bring any relief to the region as it had the second-highest number of fatalities in the country. All other regions witnessed a drop in violence with Punjab, the largest province of the country, recorded a 61% drop in violence, followed by Sindh 50% down, and Islamabad Capital Territory (ICT) registered an 11% decline, while Gilgit Baltistan (GB) had no incident of violence this year. (emphasis added)

70. CRSS further reports that in 2022, Sindh experienced 47 fatalities from terrorism and counter-terrorism activities. Within the Sindh region, most of the fatalities were in Karachi.
64. In terms of sectarian violence, in 2022, CRSS reports that there were two attacks against Shia resulting in 253 total casualties, which included 69 fatalities.^[63] One of those attacks was in Sindh and resulted in a single fatality. The balance of the casualties, including the 68 fatalities, were caused in a single attack in Khyber Pakhtunkhwa.^[64]
65. The 2022 CRSS report concludes by observing:^[65]

    In 2023, Pakistan is likely to endure more violence. The pattern over the last decade suggests that the security forces including the army and police as well as KP and Balochistan provinces will remain under terrorist violence. Also, these challenges are likely to persist as long as terrorist outfits enjoy safety in Afghanistan.

68. The Center for Research and Security Studies (‘CRSS’) reported in December 2023 that in 2023, Pakistan suffered 1524 violence-related fatalities and 1463 injuries from up to 789 terror attacks and counter-terror operations.^[66] That figure included nearly 1000 fatalities among civilians and security personnel.^[67] Throughout the whole of Pakistan, attacks directed at places of worship resulted in the fatalities of 105 civilians. Sunni Muslims had the highest number of fatalities, followed by Shia.^[68]
69. CRSS reported that in respect of 2023:^[69]

    The overall fatalities recorded this year – including those of outlaws - mark a record 6-year high, exceeding the 2018 level and highest since 2017.

71. The report observes that Khyber Pakhtunkhwa and the southwestern Balochistan provinces – both bordering Afghanistan, accounted for over 90% of all fatalities and 84% of attacks during this period.^[70] Civilians represented around 31% of fatalities, the balance being made up of security officials and 'outlaws'.^[71] It reported that the Punjab and Sindh regions were “relatively peaceful”, suffering only 8% of all fatalities in 2023.
72. Similarly, PIPS reports that during 2023 around 93% of the total recorded terrorist attacks in Pakistan took place in the Khyber Pakhtunkhwa and Balochistan provinces.^[72]
73. CRSS reported that in 2023, the southern Sindh province recorded the third-highest number of casualties (73 fatalities and 87 injuries), before observing that:^[73]

    The data indicates that Punjab and Sindh were relatively peaceful as together, both these provinces suffered only 8% of all fatalities.

74. The Pakistan Institute for Conflict and Security Studies ('PICCS') has reported that in Punjab in 2023, two civilians were killed and eight civilians were injured in militant attacks.^[74] In 2023, throughout the whole of Pakistan, 3 incidents involved non-Hazara Shia.
79. The number of Shia Muslim casualties varies according to different sources and did not always distinguish between non-Hazara and Hazara Shia. The combination of data regarding harm to, for example, Hazara and non-Hazara Shia can result in the prospect of general harm to each group becoming distorted. Indeed, as the UK Home Office observed:

    The USSD IRF Report of 2020 noted that ‘Data on sectarian attacks varied because no standardized definition existed of what constituted a sectarian attack among reporting organisations... There were multiple reports of targeted killings of Shia Muslims in Khyber Pakhtunkhwa, although because religion and ethnicity were often closely related, it was difficult to categorize some incidents as being solely based on religious identity.

Militant and extremist groups

77. The TTP has been reported to be active in the Punjab, although it primarily operates in the areas bordering Khyber Pakhtunkhwa and in southern Punjab near southwestern Balochistan province.^[75] DFAT reports that the TTP continued to assassinate political and religious leaders and to target religious minorities, including Shia.^[76] It also reports that:^[77]

    Various anti-Shia 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 Shia influence from Pakistan. The group has carried out numerous deadly attacks on Shia 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.

80. Islamic State (‘IS’) and Al Qaeda both have a presence in Pakistan.^[78] It reports that IS and Al Qaeda have targeted Pakistani military and government representatives and religious and ethnic minorities and also carried out anti-Western attacks.^[79] Al Qaeda has often collaborated with the TTP to carry out attacks; although its capability in Pakistan has been reduced, it is still active.^[80]
81. The CRSS reports that in 2023, the TTP claimed responsibility for 49 attacks and two more attacks as its joint venture with Lashkar-e-Islam, setting a new trend in its operation. The recently emerged militant group Tehreek-e-Jihad Pakistan (‘TJP’) ranked second, claiming responsibility for six attacks as its crime, while two more attacks it claimed along with Daish and BLA. The Islamic State also asserted involvement in five attacks, while Ansar al-Jihad, another recently emerged militant outfit, claimed responsibility for one attack.^[81]
84. The US State Department noted in 2020 that Shia Muslim activists reported continuing instances of targeted killings and enforced disappearances in limited parts of the country.^[82] DFAT reports that militant groups commit kidnappings and enforced disappearances.^[83] The UK Home Office reports that:^[84]

    Whilst there are reports of ‘enforced disappearances’ by Pakistan security services of Shia men suspected of being recruited by Iran to fight against the Islamic State in Syria, there is no generalised risk of enforced disappearances facing all Shia men. In 2018, there were estimated to be between 140 and 300 disappeared Shias. At least 34 recorded cases had been missing for 2 or more years. Sources indicated that disappearances continue to occur. Numerous protests have taken place demanding the recovery of missing persons but with limited results

Blasphemy

85. The applicants refer to the prospect of harm (from both the state and vigilante groups) arising from blasphemy allegations. The applicants referred to a report from the UK Home Office from July 2021 which reports that:^[85]

    Section 295 of the Pakistan Penal Code (PPC) prescribes the blasphemy laws. Section 295c notes that: ‘Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

86. I note that tensions between Sunni and Shia often flares during Muharram. In 2020, over 40 Shia were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions with targeted killings of Shia in multiple cities.^[86] DFAT reports that “[a]uthorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shia clerics from leaving home and by cutting off mobile phone services in major cities during processions.”
88. Seventy percent of blasphemy accusations, which carry the death penalty, are against Shia.^[87] I observe that the CRSS reports^[88] that between 1947 and 2021, 89 people have been extrajudicially killed from roughly 1,500 accusations and cases. However, the actual number is believed to be higher because not all blasphemy cases get reported in the press. Allegations are high in the Punjab province, with around 70% of accusations originating from Punjab. Between 1947 and 2021, out of 1098 accused, 70 were killed in Punjab. About 70% of accusations concerning males are related to Muslims. With males, 600 accusations were made about Sunnis, resulting in 39 deaths, and 309 accusations were made about Shia, resulting in two deaths.
89. In January 2023, the Criminal Laws (Amendment) Act 2023 was passed in the National Assembly. It was, however, rejected in the Senate in February 2024.^[89] There is still, however, some prospect that the legislation may be passed in the future which I account for.
90. I observe that the SATP reported that in addition to three incidents of blasphemy reported in 2022, resulting in three deaths, 2023 recorded two blasphemy-related incidents, resulting in two deaths.^[90]
92. The TLP is particularly involved in allegations of blasphemy. The TLP is an influential Sunni extremist political party primarily directed towards targeting blasphemers, particularly Shia and Ahmadis.^[91] In April 2021, the government banned the TLP and arrested its leader, later reversing the ban and releasing him.^[92]
94. In an assessment published in January 2024 by the Immigration and Refugee Board of Canada, it was reported that^[93] over 70 percent of blasphemy cases are against Shia, blasphemy cases are increasingly used to target Shia and Shia in Pakistan feel increasingly beleaguered and in danger as a result. The publication notes that whilst death sentences for blasphemy violations are seldom carried out and convictions are often overturned on appeal, a blasphemy accusation can stigmatise the alleged culprit and lead to vigilante killings before cases even conclude.^[94]
95. DFAT reports that:^[95]

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

97. DFAT Reports that “most blasphemy convictions” are overturned but that the accused was “likely” to be jailed for “years” before the case was determined to be “baseless”. DFAT also reports that individuals who have been accused of blasphemy are “at risk of extrajudicial killing, before, during and after being taken into custody. Quantitatively, CRSS indicates that in 2020, 23 people were accused of blasphemy or killed because of alleged blasphemy in 2020 in Sindh.^[96] In 2021, there were 6 such allegations in Sindh.^[97]

Returnee from the West

99. Pakistan has one of the world’s largest diasporas, including about a million people living in Western countries who regularly return.^[98] DFAT reports that:^[99]

    Returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistani law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is someone who legally exited Pakistan irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally.

100. I note that there is no suggestion that the applicants departed Pakistan illegally. Otherwise, I note that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate or purely because they have lived in a Western country.^[100]

Do the applicants, or any of them, satisfy the refugee criterion for protection?

95. The 2008 incidents occurred around 16 years ago. There is no credible or persuasive evidence of any enmity against SA or her family arising out of those events. Had such enmity existed, I consider that there would have been attacks, or at least threats, against the remaining family members. The 2015 events were incidents of general sectarian threats. Even that was nearly a decade ago. I am not satisfied that there is a real chance that such an occurrence will recur.
96. I have carefully considered the above country information, including the country information referred to in the applicants' submissions. In the circumstances, I am not satisfied that the applicant's face a real chance of serious harm. Having regard to the population of Karachi and quantitative data about both sectarian attacks and terror attacks in Karachi generally, or directed towards the Shia community generally, I am satisfied that the chance of the applicants, or any of them, experiencing serious harm is low. That conclusion does not change even if, as I find she likely would, SA were to resume her role in the Imambargah that her grandmother used to [belong to].
97. I am also not satisfied, having regard to the above country information, that the applicants face a real chance of serious harm from extremist or militant groups such as the TTP, LeJ, Sipah or ASWJ.
98. I am not satisfied that the applicants face a real chance of being accused of blasphemy or that if they were accused of blasphemy, there would be a real chance of serious harm.
101. I am not satisfied that the applicants would not receive protection in Pakistan. The country information suggests that Pakistan regularly protects the Shi'a population, particularly around Muharram. I add that in 2022, Sindh introduced a Special Protection Force for Minorities, with a mandate to protect religious minorities across the province, recruiting 1200 police officers.^[101]
100. I am not satisfied that the applicants, or any of them, will face a real chance of serious harm because they are Westernised, are perceived to be Westernised, or have lived in a Western country. There is no suggestion that the applicants do not speak the local language.
101. Considering the overall population in Karachi and the frequency of attacks and incidents of harm, I am not satisfied that the applicants, or any of them, face a real chance of serious harm for any reason.
102. I am not satisfied that the applicants face a real chance of serious harm from the TTP or any other militant groups, including those related to the Taliban in Afghanistan.
102. I have not overlooked the effect of SA's mental health on my assessment of whether the applicants face a real chance of serious harm. Section 36(2)(a) is not directed to whether a person suffers from an illness. Such an illness would not, without more, involve systematic and discriminatory conduct. A claim that an application would suffer depression on return does not satisfy the refugee criterion in s 36(2)(a).^[102]
104. I have considered whether SA's mental health impacts my assessment of whether she faces a real chance of serious harm. I am not so satisfied. Whilst SA will no doubt face heightened levels of anxiety and her mental health condition may worsen, that would not result from the act of any person but would arise from the fact of her return to Pakistan. There is no suggestion that the applicant would be unable to obtain the medication that she presently takes to manage her symptoms or that her symptoms will escalate such that she will face a real chance of serious harm on account of her symptoms. I am further not satisfied that those symptoms would increase chance of serious harm because of her Shia faith whether from sectarian violence or extremist or militant groups or for any other reason.
105. The claim that AA would face a real chance of serious harm because of his travel to [Country 1] is not pressed.
106. To avoid doubt I have also considered the applicants claims cumulatively. Having done so, I am still not satisfied that the applicants, or any of them, face a real chance of serious harm. Whilst the applicants' safety cannot be guaranteed and they do face a risk of serious harm, I am satisfied that the risk faced by them is remote and, as such, is tolerable for the purposes of s 36(2)(a) of the Act when assessing the applicants against the refugee criterion for protection.
103. For the above reasons, I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5J(1) of the Act. In those circumstances, it is not necessary for me to determine whether s 5J(2) or (3) apply to the applicant.^[103]
108. I am not satisfied that the applicant is a refugee within the meaning of s 5H(1) of the Act. On that basis, the applicants do not satisfy the refugee criterion in s 36(2)(a) of the Act.

Do the applicants, or any of them, satisfy the complementary protection criterion?

104. To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm.^[104]
106. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.^[105] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).^[106]
111. I have already found that the applicant does not face a real chance of serious harm. On that basis, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm.
107. Nor does significant harm include self-harm or harm the applicant suffers arising from mental illness where such harm arises because of the applicant’s removal to their home country and not because of harm intentionally inflicted on an applicant by ‘others’.^[107] I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of SA being removed from Australia to Pakistan that there is a real risk any person will seek to intentionally inflict mental harm on her.
113. Whilst I accept that the applicants do not wish to return to Pakistan, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Pakistan, there is a real risk that they will suffer significant harm. The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
114. For the above reasons, I do not accept that the applicant is owed complementary protection or otherwise meets the complementary protection criterion in s 36(2)(aa) of the Act.
108. As observed by Allsop CJ and Mortimer J (as her Honour then was) in GLD18 v Minister for Home Affairs:^[108]

     The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will. That is the purpose, under the present statutory scheme, of the Minister’s personal discretions in ss 351 and 417 of the Migration Act.

A further reason why KAM's claims fail

116. As I have already observed, on [date] 2024, KAM was recognised as an Australian citizen. The criteria for granting a protection visa require that an applicant be a non-citizen, among other things. KAM is an Australian citizen, and, for that reason, his claim to satisfy the criteria for the grant of a protection visa must fail.

Ministerial Intervention

117. The applicants have sought that I refer this matter for consideration of the Minister under 417 of the Act. The Minister has published guidelines concerning matters which should be brought to the Minister's attention. Two identified circumstances the guidelines indicate that it would be appropriate to bring cases to the attention of the Minister are:

(a) strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident; and

(b) compassionate circumstances regarding age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

109. KAM is an Australian citizen. KAM has recently turned 10-years-old. As an Australian Citizen KAM has, among other things, a right to live in Australia. He has a right to live "in a peaceful country with a stable system of government".^[109]
111. Australia has signed the UN Convention on the Rights of the Child (the 'Convention').^[110] It has, among other things, enacted legislation to give effect to that convention.^[111]
120. Article 7 of the Convention provides that a child shall, as far as possible, have the right to know and be cared for by their parents. It is trite to observe that it is well recognised that the separation of a child, from either or both of their parents, can have significant, life-altering, impact on a child.
121. The decision to refuse the applicant a protection visa is affirmed. That decision has been made not because the applicants do not face a real chance of serious harm, but because the chance of serious harm is properly considered to be remote. Subject to successfully obtaining another visa or a successful outcome under s 417 of the Act, SA, AA, JAM, and DZM will become unlawful non-citizens and be liable for removal from Australia. KAM cannot be involuntarily removed from Australia.
122. In the short-to-medium term, KAM faces the prospect of either being deprived of his right to live in Australia or his right to remain with his family. SA and AA, as KAM's parents, face a choice: Abandon him here in Australia, where he will be safe, or take him back to Pakistan, where he faces a chance, although remote, of serious harm. That is a position that no parent or person should ever be forced to make.
123. Of course, the harm caused by the potential separation of KAM and his family is not limited to him. It will no doubt also cause emotional harm and distress to SA, AA, JAM and DZM. SA already has a complex, albeit stable, mental health condition. That will be undermined if she is forced to make the decision I referred to above. These observations will apply, with equal force, to DZM in less than 4 years.
124. It is, with respect, difficult to imagine more serious, ongoing and irreversible harm and continuing hardship to a 10-year-old child than being separated from their family.
125. In the circumstances, I will refer these applications to the Minister to consider exercising the power in s 417 of the Act.

CONCLUSION

126. The applicants are not persons in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).
127. I have also considered the alternative criterion in s 36(2)(aa). I find that the applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(aa).
128. Other than each other, there is no suggestion that the applicants satisfy s 36(2) by being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. The applicants therefore do not satisfy s 36(2) criterion.

DECISION

129. In respect of case 2215120, the Tribunal affirms the decision not to grant the applicants a protection visa.
130. In respect of case 2215114, the Tribunal affirms the decision not to grant the applicant a protection visa.
131. In respect of both cases, the Tribunal refers them for Ministerial intervention under s 417 of the Act.

Fraser Robertson
Member

ATTACHMENT – EXTRACT FROM MIGRATION ACT 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

...

5H Meaning of refugee

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

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

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

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

...

5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) significant physical harassment of the person;

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

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

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

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

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

5K Membership of a particular social group consisting of family

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

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

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

(i) the first person has ever experienced; or

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

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

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

5L Membership of a particular social group other than family

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

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

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

(c) any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i) the relevant State; or

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

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

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

(a) the person can access the protection; and

(b) the protection is durable; and

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

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally

1. ^[1] CJZ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 747.
2. ^[2] SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [9]; SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 at [18].
3. ^[3] See Administrative Appeals Tribunal Act 1975 (Cth), s 19D(4). See also SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; 159 FCR 291 at [39] and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [50]; MZXSP v Minister for Immigration and Citizenship [2008] FMCA 374 at [42]; MZABH v Minister for Immigration and Border Protection [2015] FCCA 1111 at [24].
4. ^[4] I note, in this regard, that the submissions relied upon do not deal with a link between the 2008 incidents and the 2015 incidents, but rather only deal with whether there is a link between each of the incidents in 2008.
5. ^[5] See written submissions dated 27 June 2024, Part B.
6. ^[6]Migration Act 1958 (Cth), s 5H(1)(a).
7. ^[7]Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
8. ^[8]Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
9. ^[9]Migration Act 1958 (Cth), s 5J(4)(c).
10. ^[10] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [ 2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
11. ^[11] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
12. ^[12] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [13]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
13. ^[13] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [14]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
14. ^[14] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
15. ^[15] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 25 January 2022, 20220125094359 ('2022 DFAT Report').
16. ^[16] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
17. ^[17] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
18. ^[18] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
19. ^[19] See written submission dated 27 June 2024
20. ^[20] See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
21. ^[21] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ); see also, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
22. ^[22] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
23. ^[23] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
24. ^[24] See written submissions, 5 May 2021, p 2.
25. ^[25] See written submissions, 5 May 2021, p 2.
26. ^[26] See written submissions, 5 May 2021, p 4.
27. ^[27] See written submissions, 27 June 2024, p 4.
28. ^[28] See Pakistan Bureau of Statistics, 2023 Census Results, <https://www.pbs.gov.pk/sites/default/files/population/2023/Pakistan.pdf>
29. ^[29] Pakistan Department of Statistics, 2023 Census Results, <https://www.pbs.gov.pk/sites/default/files/population/2023/Sindh.pdf>.
30. ^[30] Pakistan Department of Statistics, 2023 Census Results, <https://www.pbs.gov.pk/sites/default/files/population/2023/Sindh.pdf>.
31. ^[31] CISEDB50AD5088, “EASO Country of Origin Information report Pakistan Security Situation”, European Asylum Support Office (EASO), 07 August 2017 p 19; ‘United States Commission on International Religious Freedom Annual Report 2018’, US Commission on International Religious Freedom, 25 April 2018, p. 66, CIS7B83941863.
32. ^[32] 2022 DFAT Report, [3.55].
33. ^[33] 2022 DFAT Report, [3.56].
34. ^[34] 2022 DFAT Report, [5.40].
35. ^[35] 2022 DFAT Report, [3.57].
36. ^[36] 2022 DFAT Report, [3.57].
37. ^[37] ‘Country Policy and Information Note – Pakistan: Shia Muslims’, UK Home Office, 13 July 2021, 20210714090736, [2.5.3].
38. ^[38] ‘Country Policy and Information Note – Pakistan: Shia Muslims’, UK Home Office, 13 July 2021, 20210714090736, [2.6.3].
39. ^[39] ‘Country Policy and Information Note – Pakistan: Shia Muslims’, UK Home Office, 13 July 2021, 20210714090736, [2.5.3].
40. ^[40] ‘Country Policy and Information Note – Pakistan: Shia Muslims’, UK Home Office, 13 July 2021, 20210714090736, [2.4.7].
41. ^[41] 2022 DFAT Report, [3.61].
42. ^[42] 2022 DFAT Report, [3.61].
43. ^[43] Written submissions, 27 June 2024, pp 6-12.
44. ^[44] <http://www.dawn.com/>
45. ^[45] See 'Death toll from attack on Shia mosque in Peshawar rises to 62', 5 March 2022, Dawn, <https://www.dawn.com/news/1678412>
46. ^[46] Written submissions, p 12.
47. ^[47] Written submissions, 27 June 2024, p 14.
48. ^[48] Written submissions, 27 June 2024, p 18-19.
49. ^[49] Written submissions, 27 June 2024, p 20-23; 24.
50. ^[50] ‘Strict security measures for Ashura’, Imran Asghar, Express Tribune (Pakistan), 18 August 2021, 20211122113544.
51. ^[51] ‘Security plan for Karachi’s Ashura processions finalised’, Imtiaz Ali, Dawn (Pakistan), 6 August 2022, 20220808112805.
52. ^[52] ‘Ashura observed peacefully’, Dawn (Pakistan), 31 July 2023, 20230802100920; ‘Security plan for Karachi's Ashura processions finalised’, Imtiaz Ali, Dawn (Pakistan), 6 August 2022, 20220808112805; ‘9th Muharram procession concludes peacefully in federal capital’, Associated Press of Pakistan, 7 August 2022, 20220809085919.
53. ^[53] 1805756 (Refugee) AATA 870 (24 January 2024).
54. ^[54] ‘Country Policy and Information Note - Pakistan: Shia Muslims’, UK Home Office, 13 July 2021, 20210714090736, [2.4.13].
55. ^[55] 2022 DFAT Report, [2.34].
56. ^[56] 2022 DFAT Report, [2.34].
57. ^[57] 2022 DFAT Report, [2.36]–[2.37].
58. ^[58] ‘Daesh commanders among 13 terrorists arrested in Punjab’, Jahangir Akram Khan, Samaa, 20 August 2023, 20230821104105.
59. ^[59] 2022 DFAT Report, [3.60].
60. ^[60] 2022 DFAT Report, [3.60].
61. ^[61] 2022 DFAT Report, [3.60].
62. ^[62] ‘Re-Emergence of Proxy Terrorist Annual Security Report, Pakistan, 2022, Center for Research and Security Studies, ('2022 CRSS Report'), <https://crss.pk/wp-content/uploads/2023/08/Annual-Security-Report-2022.pdf> p 4.
63. ^[63] 2022 CRSS Report, p 40.
64. ^[64] 2022 CRSS Report, p 41.
65. ^[65] 2022 CRSS Report, p 45.
66. ^[66] ‘Pakistan’s violence-related fatalities mark a record 6-year high, 56% surge in violence recorded in 2023: CRSS Annual Security Report’, Center for Research and Security Studies, 31 December 2023, 20240104150739 (‘2023 CRSS Report’), <https://crss.pk/pakistans-violence-related-fatalities-mark-a-record-6-year-high-56-surge-in-violence-recorded-in-2023-crss-annual-security-report/>.
67. ^[67] 2023 CRSS Report.
68. ^[68] 2023 CRSS Report.
69. ^[69] 2023 CRSS Report, p 3.
70. ^[70] 2023 CRSS Report, p 4.
71. ^[71] 2023 CRSS Report, p 12.
72. ^[72] The 2023 Pak Institute for Peace Studies (‘PIPS’) Pakistan Security Report 2023 (‘2023 PIPS Report’).
73. ^[73] 2023 CRSS report, [17].
74. ^[74] Pakistan Institute for Conflict and Security Studies, <https://www.picss.net/featured/2023-ends-with-70-increase-in-militant-attacks-81-rise-in-deaths-picss-report/>.
75. ^[75] ‘COI Focus - Pakistan: Security situation’, Office of the Commission General for Refugees and Stateless Persons (Belgium), 28 February 2023, 20230628143902.
76. ^[76] 2022 DFAT Report, [2.40].
77. ^[77] 2022 DFAT Report, [2.41].
78. ^[78] 2022 DFAT Report, [2.42].
79. ^[79] 2022 DFAT Report, [2.42].
80. ^[80] 2022 DFAT Report, [2.42].
81. ^[81] ‘Pakistan’s violence-related fatalities mark a record 6-year high, 56% surge in violence recorded in 2023: CRSS Annual Security Report’, Center for Research and Security Studies, 31 December 2023, 20240104150739.
82. ^[82] United States State Department, Country Report on Human Rights for 2020, 30 March 2021.
83. ^[83] 2022 DFAT Report, [4.4].
84. ^[84] ‘Country Policy and Information Note - Pakistan: Shia Muslims’, UK Home Office, 13 July 2021, 20210714090736, [2.4.6].
85. ^[85] ‘Country Policy and Information Note - Pakistan: Shia Muslims’, UK Home Office, 13 July 2021, 20210714090736.
86. ^[86] 2022 DFAT Report, [3.59].
87. ^[87] 2022 DFAT Report, [3.59].
88. ^[88] ‘Blasphemy Cases in Pakistan: 1947-2021’, CRSS, <https://crss.pk/wp-content/uploads/2022/01/Blasphemy-Report-.pdf>.
89. ^[89] ‘Senate rejects criminal law amendment bill 2023’, Associated Press of Pakistan, 19 February 2024.
90. ^[90] SATP, Terrorism Assessment, Punjab (satp.org), <https://www.satp.org/terrorism-assessment/pakistan-punjab>.
91. ^[91] 2022 DFAT Report, [2.46].
92. ^[92] 2022 DFAT Report, [2.48].
93. ^[93] See ‘PAK201761.E Pakistan: Situation and treatment of Shia [Shia, Shi’i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; treatment of Shia returnees and whether they are targeted for extortion and blasphemy...’, Immigration and Refugee Board of Canada, 04 January 2024, 20240130115710.
94. ^[94] See ‘PAK201761.E Pakistan: Situation and treatment of Shia [Shia, Shi’i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; treatment of Shia returnees and whether they are targeted for extortion and blasphemy...’, Immigration and Refugee Board of Canada, 04 January 2024, 20240130115710.
95. ^[95] 2022 DFAT Report, [3.58].
96. ^[96] 2022 CRSS Report.
97. ^[97] 2022 CRSS Report.
98. ^[98] See generally, Pakistani Nationals in Europe 2021, <https://dtm.iom.int/sites/g/files/tmzbdl1461/files/reports/PAK_2021_Migrant%20Presence_Europe.pdf> and ‘The Pakistani Diaspora in the United States, June 2015, <https://www.migrationpolicy.org/sites/default/files/publications/RAD-Pakistan.pdf>.
99. ^[99] 2022 DFAT Report, [5.28].
100. ^[100] 2022 DFAT Report, [5.31].
101. ^[101] 'Country Policy and Information Note Pakistan: Christians and Christian converts, Pakistan', UK Home Office, version 5.0, 30 April 2024, [4.1.3]; see also ‘Why are Pakistan’s Christians targeted?’, BBC News, 30 October 2018.
102. ^[102] CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [30]- [31] (Collier J).
103. ^[103] ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [24]–[25] (Rangiah J).
104. ^[104] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
105. ^[105] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
106. ^[106] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [27]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
107. ^[107] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [88]–[89] (Allsop CJ and Mortimer J); see also CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (Collier J); CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (Reeves J).
108. ^[108] [2020] FCFCA 2 at [50] (Allsop CJ and Mortimer J).
109. ^[109] See <https://immi.homeaffairs.gov.au/citizenship-subsite/Pages/Learn-about-being-an-Australian.aspx>
110. ^[110] [1991] ATS 4.
111. ^[111] See Family Law Act 1975 (Cth), s 60B.