1318993 (Refugee)

[2015] AATA 3250

1318993 (Refugee) [2015] AATA 3250 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1318993

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Michelle Grau

DATE:7 August 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 07 August 2015 at 4:07pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).The applicant who claims to be a citizen of Pakistan, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] December 2013. He applied for review on 16 December 2013 and it was constituted to this tribunal on 11 February 2015.

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

3. In summary, the applicant, a Turi, Shia from Parachinar claimed he received threatening phone calls, letters to convert to Sunni and escaped an attack in 2012. His claims his brother, uncle and cousins have been injured or killed. His siblings, nieces and nephews have ceased attending work or school because of attacks. The applicant claims it is not safe to relocate anywhere in Pakistan as he will be targeted and suffer harm from militant groups and Sunnis as a Turi, Shia, Pashtun, attending the mosque and processions. He may also face harm from other Shias and Hazaras as Pashtun, Turi Shia or being internally displaced and because of identity based violence.

4. The applicant appeared before the Tribunal on 5 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issues in this case are

   a.Is the applicant credible?

   b.Does Australia have protection obligations under the Refugee Convention?

   c.Does Australia have protection obligations under the complementary protection criterion?

6. The tribunal has considered the material held on department and tribunal files, including the applicant’s statements, documents and agent’s submissions and country information.   A number of pre and post hearing submissions were provided also, which have been considered (up to 2 August 2015 submission).

7. According to his application the applicant had [stated years] of education, completed high school in [year]; completed [tertiary qualifications] and commenced [a postgraduate course] and was employed as a [occupation]. In his December 2012 statement the applicant claimed:

   a.Although he was born in [location] his family originate from Parachinar, Kurram Agency. His father was an [occupation] and travelled and worked a lot in different places. They moved to Peshawar in 1988 and lived in [location] for most of his life in a majority Sunni area.

   b.His older brother was attacked by members of Sepahi Shaba in 1994 and stabbed; another relative was shot and seriously injured as well. In 1993 his uncle was shot and killed by members of a Sunni tribe.

   c.Sunni Muslims made fun of his religion and insulted the Shia mosque he attended. It has become worse and dangerous to pry at the Shia mosques.

   d.He received threatening phone calls on his mobile in January 2012 to kill him if he did not renounce Shia Islam. He thought it was a prank by his friends. The [February] 2012 caller identified himself as a member of Lashkari Jangevi and gave him a week to convert to Sunni Islam.

   e.[In] February 2012 when we went to a government office to get an id card, two men got out of their car, pointed guns at him, and fired shots at him. He escaped into a culvert and got to a police station and lodged a complaint. They assured him they would do everything to arrest them.

   f.He stayed in his house and was afraid to continue his study or work. So he fled Pakistan in May 2012.

   g.He fears he will be killed by several Taliban groups because he is Shia Muslim and by members of Lashkari Jangevi who threatened to kill him if he did not convert to Sunni Islam and join the Jihad.

8. In summary, the applicant’s 2014 statement claimed he was not highly educated but did his exams privately and could not continue his education and it is not possible to get a great job because everyone has a master’s degree. Even if he gets a good job he will be targeted as an educated Shia. His domicile ID is from Parachinar as his father is from there, even though the applicant lived in Peshawar. He could not remember every detail of the attack because of fear. The current PM is connected with the Saudis and works with the SSP and LeJ and the state does not support Shias. His family received threat letters after he left and many people who received the letters have been killed. There is no safe place in Pakistan for Shias. His cousin was deported from [Country 1] and upon arrival in Pakistan was arrested, tortured and imprisoned until a bribe was paid. Two of his cousins were wounded in an attack [in] July 2013 and there is video showing him.

9. In summary, the applicant’s 2015 statement noted his prayer leader was killed in Islamabad in November 2014; the applicant’s family doctor was killed in his clinic in Peshawar in January 2015; his mosque was attacked in February 2015 and his brother was injured in the attack; there was another mosque attack a week later in Islamabad in which many people were killed; his sisters are in Parachinar; his family are in Peshawar and they do not open the door and do not allow friends to visit. After the December 2014 school attack in Peshawar, he stopped his nieces and nephews from attending school and his brother from going to work and he supports his brother as it is not safe for him to work. The situation is the same in Rawalpindi and nowhere in Pakistan is safe.

   FINDINGS AND REASONS

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

    Country of reference

11. The Tribunal finds the applicant is a national of Pakistan. He provided a copy of his identity documents to the department. He made no claim to be a national of any other country.  The Tribunal accepts the applicant’s claims should be assessed against Pakistan for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

12. The tribunal accepts the applicant was born in [location] and his family moved to Peshawar in 1988, where he continued to live until his departure in May 2012.  He claims his ID card identifies him from Parachinar because his father is from Parachinar, however the applicant has never lived in Parachinar. The tribunal accepts that the applicant’s home area is Peshawar in Khyber Pakhtunkhwa, where the applicant has lived most of his life. The tribunal accepts his ID card identifies him from Parachinar in FATA.

    Is the applicant credible?

13. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). However, the Handbook also states:

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

14. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.

15. The tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The tribunal is satisfied the standard of interpreting at the hearings was reasonable and competent. Although an interpreter was used throughout the hearing, the applicant’s English was fluent and towards the end of the hearing when submissions and country information was discussed the applicant communicated fluently in English. The tribunal considers the applicant was able to communicate effectively, understood the tribunal proceedings and participated in a meaningful way.

16. The tribunal has had regard to the tribunal guidelines on credibility and the agent’s submissions about credibility. The agent made submissions about the applicant’s credibility and that is should be accepted, including the documents provided. The tribunal has had regard to the agent submissions and applicant’s explanations about his credibility but it does not accept that the applicant is a witness of truth and has fabricated his claims. Firstly, the tribunal found the applicant’s evidence was evasive and inconsistent. He also added to his account as he went along. Further his account of the gun attack and his escape lacked credibility and changed.  His evidence about his siblings ceasing work and his study at home also changed as he went along. Further, the applicant added new claims about the motivation for the 2012 threats. As well his hearing account of 2012 escape from a gun attack was inconsistent with his written statement.  The tribunal considered the applicant was not recounting a true event and making up answers in response to tribunal concerns. Further, that he would return to his home after threats and a gun attack was lacking in credibility. The tribunal also had concerns about the documents provided, which are discussed below.

    Siblings cease work and being followed

17. At hearing the applicant claimed his siblings had ceased work and his sister had been followed, his nieces and nephews had ceased school due to attacks and fear.

18. The tribunal was concerned about the manner in which he gave his account about the sisters ceasing work and being followed. The tribunal considers his evidence was hesitant, told in a piecemeal fashion and it was a new claim. At first he claimed the sisters (one of them a [occupation]) had ceased work a year ago. Then was hesitant and unsure of when [she] ceased work. He said she ceased because of the threatening letters they received in March or April 2013 and someone was following her. The tribunal expressed concern that she did not cease work immediately but continued for a year after the threatening letter. The applicant added she ceased work after she thought someone was following her. She did not report it to police as it is pointless. The tribunal expressed doubt that she would not report it to police because it was pointless but the applicant would report his attack to police. The applicant said it was because he was attacked, whereas she was being followed. He later added you cannot report everything. The tribunal considers the applicant was adding to his story and making up his answers as he went along.

19. Further, the applicant had not mentioned anything about his sisters ceasing work or being followed in his 2015 statement. However, he had mentioned he had told his brother to cease work and keep the children home from school after the bomb blast near the school.  The tribunal considers his failure to mention anything about his sisters reinforces the tribunal’s view that he was making up the story as he went along and not recounting a true event. 

20. Further, the tribunal does not accept the applicant’s brother ceased work because he told him to after a bomb blast at the school. The applicant’s account that he, as the [brother] in Australia, could ensure his brother did not go to work lacked credibility, particularly given the brother has a family and a government job. Further, when asked whether others from the same government office stopped going to work, the applicant did not know. The tribunal does not accept he would not know or discuss this with his brother as part of a discussion or plea to cease work. The tribunal considers the applicant was not telling the truth and making it up as he went along. 

21. Further, later in the hearing the applicant said his family have continued to attend the mosque after the blast that injured his brother. The applicant made it clear that the brother was not attending the mosque due to his injuries, but once better would attend. The applicant claimed education was not as important but going to the mosque was. The tribunal accepts that religion may be very important to the family, but it finds it incongruous, nonetheless, that his brother would cease work at a government office because of a blast at a nearby school but the family would not cease to attend the mosque, where he was injured. Given the problems with the applicant’s evidence about his siblings ceasing work and the incongruity of attending the very place where the brother was injured, the tribunal does not accept his sisters and brother ceased work or his nieces and nephews have not attended school because of fear of threats or other bomb blasts as claimed.

    Applicant’s study

22. The applicant’s evidence about his work and study activities was evasive and inconsistent. For instance the tribunal asked the applicant a number of times whether he worked or studied in January 2012 and 2011. The tribunal spent some time trying to get a straight answer from the applicant. Eventually, his evidence was in 2012 he was enrolled at university but did not attend class as he had not paid his fees; he finished working in the beginning of 2011 and was not studying except for a test for his [qualification]. The applicant claimed he did not attend classes but studied the standard books at home and it was not online. The tribunal accepts that study often occurs at home, but there needs to be some communication of course requirements and what will be examined, whether at classes or some correspondence. The tribunal does not accept that the applicant’s explanation that he just studied books for the exam. The tribunal considers the applicant was not telling the truth and avoiding the question and trying to ensure his account suggested he kept a low profile and was at home. Further, his application clearly stated he had [stated] years of education and completed [tertiary qualifications] and had commenced studying [a postgraduate course], but had not completed [it]. The tribunal finds the applicant finished high school and enrolled and attended university, obtained [a qualification] and commenced a [postgraduate course], but did not complete it. The tribunal does not accept he was uneducated.

23. Further, the tribunal finds he worked as a [occupation], [details deleted] between 2006 and 2011 as evidenced by his experience certificate. The tribunal does not accept he stayed at home and attended university by correspondence only or was in hiding.

    2012 threats and attack

24. The applicant claimed he received threatening phone calls and was attacked [in] February 2012.

25. The tribunal finds the applicant’s account of the threats and attack on him in 2012, lacking in credibility. For instance, that he would be threatened twice with death but think it was a prank or someone teasing him and also be scared does not make sense. Further, that he did not do anything about the calls does not make sense. For instance, if he thought they were serious threats, one might take steps to avoid harm or report them. If he thought they were a prank by friends, one might ask the friends.

26. Further, the applicant’s explanations of why he might have received the calls changed and lacked credibility. The tribunal considers the applicant was making up the story as he went along. For instance, at first he claimed it was because of his job in an NGO office. However, the applicant ceased that work in June 2011, six months before the threats. The applicant then claimed he was a member of a political party and argued about Sunnis and Shias. However, the applicant had not mentioned anything about being a member of a political party in his statement of claims. Further, it was inconsistent with his claim in his statement that he had to conceal his religious beliefs. In response to tribunal concerns, the applicant claimed he was not an active member but he assisted as a [volunteer] for the religious processions.

27. However the applicant’s account of being a [volunteer] at the Muharram processions was hesitant and evasive.  For instance, his evidence about when he `did this was hesitant and evasive. When asked when or how often he worked in this role, he described [deleted] rather than answer when or how often. The tribunal had to ask the question a number of times and his answers were that it occurred at different times. Eventually, he said it was in December 2011.Then said it was once a year and in December 2010. He claimed there was another event also in January or February 2011. 

28. When the tribunal expressed concern that he had not mentioned this activity previously, the applicant said he had not thought of it before or as a reason why he was targeted.

29. The applicant then added another claim saying he might have been targeted because of a Sunni family who lived opposite. However, the applicant’s family still live at the same home more than three years later and the applicant had returned to the same home after the February attack.

30. The tribunal does not accept the applicant’s many different accounts of why he thought he was targeted. The tribunal considers he was making up stories to try to account for why he was targeted or threatened in the first place. Further the tribunal does not accept that if he had been targeted he would not have thought of or mentioned these reasons (even as possibilities) in his statement. The tribunal does not accept that he would have failed to have mentioned such key claims, such as a fight with a Sunni neighbour or being a [volunteer] or arguing about Sunni and Shia religion in his statement. The tribunal finds the applicant not recounting true events but making up a story as he went along and was not telling the truth. The tribunal does not accept he was a [volunteer] at processions or religious events or mosques.

    2012 gun attack and escape

1. As discussed with the applicant at hearing the tribunal had serious concerns about the credibility of his account of the attack and escape. The tribunal does not accept that he could have escaped two men shooting at him with machine guns by jumping down into a culvert and running away. The tribunal does not accept that being 12 metres away from him they would not hit him. Further, the tribunal does not accept that if they were out to kill him, that he could so easily escape by jumping into the culvert. Further, that the men did not chase him or jump into the culvert as well after him is lacking in credibility.

2. As well the applicant’s account at hearing was inconsistent with his written statement. His statement says he saw the men pointing guns at him and he jumped into the culvert. At hearing, initially he claimed he saw the armed men and felt something and jumped into the culvert and then he heard firing. The tribunal confirmed and clarified his evidence again and he claimed they looked at him and were getting ready to point the guns at him and he jumped. Later he changed his account to be consistent with the statement that they pointed guns at him.

3. Further, according to his statement the attack occurred as he stepped out of the building and was walking on the pavement. However at hearing initially he said he did not know how far away he was from the office and then added it happened four or five minutes away from the office.  The applicant said it was consistent with what he said in his department interview. The tribunal noted it was referring to his written statement. The applicant said it was not signed on every page. However, the tribunal noted the statement was signed by him and was interpreted to him at the time.

4. Further, the tribunal does not accept that someone who had escaped a gun attack after threats, who lived in fear, would return to their home for 3 months.  The applicant said he did not know where else to go and the attack had been on the street not at home. However, the applicant claimed he had received threatening phone calls and later written threats were sent to his home. If the Lej had targeted him and wanted to find him, he could have easily been found at home. Further, while he claimed he remained indoors most of the time and was afraid to continue his study or work, he went to Islamabad twice to organise his [Country 1] visa.

5. Further, the tribunal does not accept that if targeted by Taliban or LeJ that they would wait so long to do anything or that they would send letters more than 8 months after he left Pakistan and a year after they first threatened or attacked him.  The tribunal has considered the threat letters and the applicant’s evidence but given the delay in the letters, the prevalence of fraudulent documents and the issue of the applicant’s credit the tribunal places no weight on the threat letters. Further the tribunal has considered the police report provided by the applicant but similarly the tribunal places no weight on it because it is a poor quality document, the contents of a police report do not mean an event occurred and there is a prevalence of fraudulent documents in Pakistan.[1]

   [1] DFAT country report Pakistan 5.44-5.46

6. The tribunal does not accept the applicant’s account of the gun attack on him by two people with machine guns and his escape as it is not credible. It does not accept that he would receive two phone calls and consider them pranks and do nothing about it, particularly in environment where he was in fear. Further, the tribunal does not accept that if targeted by Taliban or LeJ that would wait so long to do anything or that they would send letters more than 8 months after he left and nearly a year after they first threatened or attacked him. Further, the tribunal does not accept that someone who had escaped a gun attack after threats, who lived in fear would return to their home for 3 months or that he could remain at home for three months and not be harmed or threatened.

7. The tribunal noted his brother and uncle were harmed a number of years ago (1993 and 1994). The tribunal noted the applicant claimed he was attacked [in] February 2012 but he did not leave until [May] 2012. The applicant said it took some time to arrange travel and he explored places he could go to. Even accepting the harm to his brother and uncle, the tribunal does not accept that the applicant or his family were targeted or that the applicant was in fear as it happened many years ago and the applicant had a passport issued in 2008 but did not try to travel or leave on it.  The tribunal accepts that it may have taken some time to make travel arrangements in 2012 but as discussed above the tribunal finds that he would return to his home during that period suggests he was not living in fear or targeted by Lej or anyone as he would have been easily found.

   Brother and cousins harmed

8. The applicant claimed his cousin was deported from [Country 1] and detained and tortured on return and after release he was later a victim of bomb blast near the mosque.

9. The tribunal does not accept his cousin was tortured or detained as it is not consistent with country information that returnees are not harmed and only face a small fine if they returned involuntarily.[2]  Further, the applicant did not mention anything about his cousin in his 2015 statement. Given the late mention of his claims about his cousin being tortured, detained, and injured and the country information about returnees to Pakistan and the tribunal findings about the applicant’s credit, the tribunal does not accept his cousin or cousins were detained, interrogated or tortured.

   [2] DFAT country report Pakistan 5.20 – 5.22

10. The applicant claimed a YouTube video showed his cousin being checked on the way into the mosque in 2015. The applicant also provided a picture and referred to YouTube videos of the cousin attending a mosque in 2015 and being searched. The tribunal accepts his cousin, like most people attending the mosque, are checked going into the mosque as that is consistent with country information about security checks.

11. In post hearing submissions the applicant claimed two cousins were injured in a bomb blast in the market area in July 2013. The tribunal accepts the country information that two bomb blasts occurred in the market area on 26 July 2013 in Parachinar and 57 people were killed and 100 injured. He provided medical records and photos of the cousin injuries. The tribunal has some doubts about the authenticity of the medical documents given the prevalence of fraudulent documents, the late provision of the documents and the paid date stamps refer to 2012, which was a year before the claimed attack and injuries. Further, at hearing he claimed one cousin was injured harmed but in post hearing claimed two cousins were injured. He also referred to him as a nephew in post hearing submissions.

12. Given tribunal concerns about the documents and about the applicant’s credibility generally, it also has serious doubts that his cousin or cousins or nephew were injured in bomb blasts in July 2013 as claimed.

13. The tribunal has considered the applicant’s claims about his brother being injured in a mosque blast in Peshawar. The tribunal also has some doubts about the brother’s medical documents, and the applicant’s claims in this regard given its concerns about the applicant’s credit and problems with his evidence about his siblings ceasing work.

14. However, the tribunal accepts on the benefit of the doubt the applicant’s brother was injured in a suicide bomb attack on the mosque in February 2015 and the applicant’s cousins (or nephew) were injured in a 2013 bomb blast. However the tribunal does not accept that they were specifically targeted or the family was specifically targeted but rather they were at the mosque or market when a bomb exploded on two separate occasions – one in 2013 and one in 2015.

15. The tribunal accepts the applicant has attended Friday prayers in the past and will do so in the future and will practise his religion and attend the mosque. The tribunal does not accept he acted as [a volunteer] at processions in the past as he has not mentioned it in his statement. His evidence about this was evasive and he had difficulty recalling when he did this or when the Muharram was on.

16. Having considered the applicant’s evidence and documents, his explanations and agent submissions the tribunal finds the applicant has fabricated and embellished his claims to a large extent. The tribunal accepts that his brother and uncle were harmed in 1993 and 1994. However the tribunal does not accept the family are targeted now as this occurred many years ago. The tribunal accepts on the benefit of the doubt, his brother was the victim of a blast at the mosque in Peshawar in 2015 as were his cousins in 2013, but does not accept he or the family were a specific target but a victim in a bomb blast that targeted Shia Muslims attending the mosque. 

17. The tribunal accepts that the applicant attended the mosque on Fridays and will continue to do so in the future. The tribunal does not accept he acted or will act as [a volunteer] at religious events or processions as it has found he fabricated those claims.  Further, the tribunal does not accept that he was targeted by Lej or anyone or that he was threatened, received threatening phone calls, was attacked by two armed men or that he lived in hiding in fear. The tribunal does not accept he has been targeted by the Taliban or Lej or anyone else. The tribunal does not accept his siblings ceased work because of threats or a nearby school attack or that the nieces and nephews ceased school. The tribunal does not accept his cousin was detained or tortured. As discussed above the tribunal finds the applicant was not a witness of truth and has fabricated most of his claims.

    Future harm

18. The Tribunal is mindful it must consider the applicant’s risk of harm not only currently but into the reasonably foreseeable future.  In making its findings, the Tribunal has considered PAM3 Refugee and humanitarian - Refugee Law Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.

19. Despite the tribunal credibility concerns and findings above, the tribunal accepts the applicant fears that he will be harmed by the Taliban in Pakistan because he is of the Shia Turi tribe which has opposed the Taliban and other militant groups in Kurram Agency. The tribunal accepts the applicant is Shia Turi and will attend mosques in the future to practise his religion.

20. The tribunal has had regard to country information and accepts there has been a high level of insecurity in FATA, Kyhber Pakhtunkhwa and Balochistan.[3] Sectarian violence erupted in November 2007 after a grenade was thrown at a Sunni mosque in Parachinar during Friday prayers.[4] Militant groups such as the TTP, Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) have been engaged in the conflict.[5] Between April 2007 and early 2011, around 2000 to 3000 people were killed and over 3500 wounded[6] and much of Kurram’s health, education and agriculture infrastructure was severely damaged.[7] The road between Parachinar and the rest of Pakistan (the Thal-Parachinar Road) was effectively closed from 2007 to 2011 and there are numerous reports of attacks on convoys of trucks and buses.[8] In July 2011, the Pakistan Army launched an offensive to take control of the road, causing the displacement of thousands of Kurram residents.  In October 2011, Shia and Sunni elders in Parachinar negotiated a peace deal, however, during 2012, there was a major attack on a Shia mosque and a suicide bomb in a market in front of a Shia market which killed at least 36. [9] Security forces subsequently shot dead a number of Shia residents of Parachinar leaving a total death toll of 43.  The leader of a breakaway Taliban faction reportedly stated that, “we have targeted the Shia community of Parachinar because they were involved in activities against us”. The market attack is thought to have been retaliation by the Haqqani Network to the Turi’s continuing refusal to allow it access to Afghanistan through Upper Kurram.[10] 

    [3] DFAT country report 2.25

    [4] Chandran, S. 2008, Sectarian Violence in Pakistan’s Kurram Agency, Pakistan Security Research Unit (PSRU), Brief Number 40, 22 September, p.4

    [5] International Crisis Group 2009, Pakistan: Countering Militancy in FATA, Asia Report N°178, 21 October, p.6

    [6] Vira, V. & Cordesman, A.H. 2011, Pakistan: Violence Vs. Stability, Center for Strategic & International Studies, 5 May, p.54  

    [7] Khan, M.I. 2010, ‘The Pakistani tribe that is taking on the Taliban’, BBC News, 7 October International Crisis Group 2009, Pakistan: Countering Militancy in FATA, Asia Report N°178, 21 October, pp.6-8

    [8] International Crisis Group 2009, Countering militancy in FATA, Asia Report No 178, 21 October

    [9] Death toll rises to 36 in Pak bombing’ 2012, The Sunday Indian, 18 February

    [10] Blast at Pakistan town kills 26’, BBC, 17 February 2012 and Grubbs, J.T. 2012, ‘The Looming Storm in Pakistan’s Kurram Agency’, Jamestown Foundation, Terrorism Monitor, Vol.X, Issue 5, 9 March, p.7 Accessed 19 March 2012; ‘Death toll rises to 36 in Pak bombing’ 2012, The Sunday Indian, 18 February

21. Although sectarian violence is reported to have declined in FATA and Khyber Pakhtunkhwa in the last few years,[11] attacks on Shias continued into 2015, with 52 injured and 27 killed in Peshawar[12]. Further, the South Asian Terrorist Portal (“SATP”) contains information of multiple fatalities in the FATA and Peshawar, including suicide attacks in February and June 201. In Peshawar in 2014, 193 were killed in suicide attacks and 260 injured in the applicant’s area in 2014[13].

    [11] United States Institute of Peace Mapping Conflict Trends in Pakistan February 2014, see also and Pakistan Security report

    [12] >

    The DFAT country report notes the most potent security threat in Pakistan remains the mostly Pahstun Taliban insurgency based in the FATA and parts of Khyber Pakhtunkhwa which operates under the banner of Tehreek-e Taliban Pakistan (TTP).[14]

    [14] DFAT country report 2.27

22. The Tribunal accepts that the Taliban and associated groups have waged a campaign of violence against Shias throughout Pakistan, and in particular, in the FATA and PK areas.[15]  Notwithstanding some improvement, there is still a militant presence and insecurity, and Shias are still being targeted because of their religion and political opinion of opposition to the Taliban.

    [15] Human Rights Commission of Pakistan 2014, State of Human Rights in 2013, March, p.87.

23. On the basis of the considerable evidence on the conflict in the applicant’s home region, the Tribunal accepts the overlapping reasons of race, ethnicity (Turi) and religion (Shia Muslim) are the essential and significant reason for the harm the applicant fears. Therefore his fear of persecution is for a Convention reason. Accordingly, the requirements of s.91R(1)(a) are met.

24. Having regard to the non-exhaustive list in s 91R(2) of the type and level of harm that will constitute ‘serious harm’ for the purposes of s 91R(1)(b), the Tribunal accepts that the persecution feared by the applicant involves serious harm, including significant physical harassment or ill-treatment and a threat to his life or liberty. It follows that the requirements of s 91R(1)(b) are also met.

25. In relation to the requirements of s 91R(1)(c), the Tribunal is satisfied from country information set out earlier that the feared persecution by the Taliban or other Sunni militant groups would involve conduct which is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicant for the overlapping Convention reasons of his race and religion. It follows that the requirements of s 91R(1)(c) are met in this case.

26. The Tribunal is satisfied the applicant has more than a remote or speculative chance and therefore has a real chance of serious harm for the overlapping Convention reasons of his race, ethnicity as a Turi Shia and his religion as a Shia from the Taliban or other Sunni extremist groups, now or in the reasonably foreseeable future if he returns to his home region in FATA.

    State protection

27. Given the threat to the applicant arises from a non-state actor, the Tribunal must consider whether the Pakistan authorities are able to provide an appropriate level of state protection.  The applicant has claimed the Pakistani authorities cannot and will not protect him.

28. The UNHCR advised in 2012 that law enforcement authorities in Pakistan are unable or unwilling to protect members of religious minorities including Shias and that Sunni militant groups operate with impunity, including in areas where State authority is well established.[16]  However, Pakistan’s laws provide for state protection of people’s property, lives and religious beliefs and places. DFAT noted in its recent report that the Pakistan authorities do provide protection to Shia communities, particularly during Muhurram when Shia processions are particularly targeted, by providing extra police patrols and shutting down mobile phone towers, but that the authorities are constrained by a lack of resources and capacity.[17]

    [16] United Nations High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14 May 2012

    [17] DFAT country report 5.1-5.4

29. However, the situation is different in FATA to the rest of Pakistan. The DFAT report states militant attacks against police and security forces make it difficult for the Pakistani government to exercise control in the FATA and remote areas of Khyber Pakhtunkhwa and Balochistan.[18] The Pakistan federal government’s influence in FATA has been extremely limited since 1947 and the FATA is governed under customary laws and regulations.

    [18] DFAT country report 5.2

30. The US Institute of Peace reported in February 2014 that over the past decade, Pakistan has experienced a significant rise of violence in terms of frequency, scope and magnitude and that the violence is most concentrated along the Afghan border in the FATA[19]. It reports that while FATA has been the most violent region in South Asia for over two decades, the incidence of violence in recent years has been unprecedented, both on a per capita basis and in absolute numbers with statistics between 2009 and 2013 revealing approximately 16,578 casualties as a consequence of sectarian strife, terrorist related activity, military operations and the US Predator drone campaign.

    [19] US Institute of Peace 2014 Mapping Conflict Trends in Pakistan February at 3, 5

31. According to the Pakistan Institute of Peace Studies over 85 per cent of the recorded incidents of sectarian violence in Pakistan occurred in the applicant’s home area, Karachi, Quetta and Gilgit.[20] 

    [20] Pakistan Institute for Peace Studies

32. The South Asian Terrorism Portal (SATP)[21] reported in 2015 (data from March 2015) that, FATA  have recorded a seven years decline in civilian and security forces fatalities, but overall fatalities have been higher due to increase in terrorist fatalities under ongoing military operations. There was an increase in the number of major incidents in 2014 by 49% in comparison to 2013, principally due to counter-insurgency operations.[22] However, it reported suicide attacks, explosion and sectarian attacks remained low throughout 2014 compared to 2013 (for instance 9 suicide attacks in 2013 compared to 3 in 2014).[23] In KP there has been a continuous declaim in fatalities every year since 2010 (with the exception of 2013) and other incidences remained low through 2014, though Peshawar remained the worst affected district though in 2014 recording 169 terrorism related incidents in which 348 people were killed and 482 were injured. [24]DFAT also noted that there is still a high level of generalised violence in FATA and KP due to ongoing counter-insurgency operations against militants and that the situation remains volatile.[25] The tribunal notes DFAT assess there is a moderate risk of sectarian violence in some areas in KP, but some Shias have relocated to relative safety of Peshawar from other parts of FATA or KP.[26]  However according to SATP 52 have been injured and 27 killed in sectarian violence in Peshawar in 2015 so far compared to 60 and18 for all of PK in 2014.[27]

    [21] The Province accounted for 198 major incidents of violence resulting in 2,709 deaths in 2014, as against 133 such incidents, accounting for 1,534 fatalities in 2013.

    [23] DFAT country report and  DFAT Shia Report

    [26] DFAT Shia report 4.29

    [27] See type="1">

33. The tribunal accepts there has been some improvement in the security situation in FATA and KP and the security forces are engaged in counter-insurgency operations against the militants. However, the long standing and serious level of sectarian violence compounded by the presence of anti-Shia militant groups targeting the Shias in the area together with the weight of the country information indicating that the authorities in Pakistan are struggling to contain that violence causes the Tribunal to accept that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his Shia religion and his race if he returns to his in his home region, now or in the reasonably foreseeable.

34. The Tribunal considers further below whether the applicant is able to relocate to another part of Pakistan.

    Relocation

35. There remains the question of whether the applicant will face less than a real chance of serious harm by relocating to a different part of Pakistan. It is well settled that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country[28]: Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.

    [28] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1

36. Thus, a person will be excluded from refugee status if it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him or her to seek refuge in another part of the country. ‘Reasonable’ will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person’s country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[29]

    [29] SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne and Brennan JJ, Callinan, J, agreeing.

37. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.  The DFAT report states there is freedom of movement of Pakistani citizens throughout the country. [30]  The DFAT report further states many persons formerly displaced from FATA due to past conflict have since been resettled in the FATA or successfully relocated to other parts of Pakistan. The DFAT report identifies options are available for most ethnic and religious minorities to relocate to large, urban centres, that are home to mixed populations and access to services and employment opportunities.[31]

    [30] Human Rights Commission of Pakistan 2005, The State of Human Rights in 2005, HRCP website, p.1 DFAT Shia report 5.4 – 5.5

Given the applicant’s background, the Tribunal identified Lahore as a location in Pakistan where the applicant may be able to relocate to avoid persecution.

The applicant claimed he cannot safely relocate anywhere in Pakistan because he is identifiable as a Turi Shia from his name, and from Parachinar from his ID card or is a Turi Shia from Peshawar. He will also be identified from his religious practices and he would be targeted and harmed by the Lej and others.

Based on DFAT report information that Pakistani Shias are not physically, (apart from Hazaras) linguistically or legally distinguishable the tribunal does not accept the applicant is distinguishable from his appearance.[32] While the applicant has never lived in Parachinar he claimed his ID card and domicile was in Parachinar because his father originated from there. The tribunal has found that he lived most of his life in Peshawar and has never lived in Parachinar, but accepts he may also be identified as from Parachinar on the basis of the domicile certificate. In any event, the tribunal has considered the applicant’s profile as both someone who lived in and whose home area is Peshawar and whom may be identified as from Parachinar by virtue of his ID documents.  Further, the Tribunal accepts the applicant’s family name is one which would readily identify him as a Shia. His family name is listed in the DFAT Shia report as a common Shia name. Further he would be identifiable in attending Shia mosques. The Tribunal accepts that the applicant would be identified throughout Pakistan as a Turi Shia from Peshawar or Parachinar.

[32] DFAT Shia report 3.6

The Tribunal accepts that as a Turi Shia from his home region (whether identified as from PK or FATA), the applicant will be imputed with a political opinion that is opposed to the Taliban and other Sunni extremists. 

The agent submitted the applicant’s claims were based on his Turi race; Shia Muslim religion and his imputed political opinion as an active opponent of the Sunni extremist groups by virtue of his tribal affiliation and he has been directly and personally targeted by the Taliban, as has members of his family. The agent submitted if relocation is to be considered the applicant fears harm based on membership of particular social group of internally displaced Shi Pashtun, internally displaced Pashtun, progressive Shia Pashtun, educated Shia Pashtuns, Turi Shias from Parachinar.

In summary, the agent submitted and applicant claimed it would not be safe for him to relocate anywhere in Pakistan as he faced harm from militant groups, sectarian violence, Sunnis and other Shias. The applicant has a lack of family networks outside Parachinar, while he speaks Urdu and Pashto, he does not speak Punjabi. He would have difficulty finding a job and if he did find a job it would have to be well paid job to finance relocation in a larger city, and as a result this would increase his risk of harm as he would be targeted as a professional or educated Shia Pashtun. Further, he faced being targeted at Muharram processions and there were multi coordinated attacks on the Shia community in every major city and the State is unwilling and unable to provide durable safety. Further, it was submitted the State would not protect.

The agent submitted the number of Shias killed in Pakistan in 2015 is the same as the number recorded for whole of 2014 and growing sectarian clashes and attacks in Islamabad and Rawalpindi and also violence from land grabbers or mafia in Karachi and violence aimed at changing the demographics.  Given the levels of generalised and sectarian violence this contributes to unreasonableness of relocation. The SATP provides list of attack and ongoing collaboration with state authorities that enables militant groups to continue activities in Pakistan. The agent submitted the state collusion in protection and cultivation of sectarian militant groups means that there is not adequate state protection and that there is no internal protection alternative.

The agent submitted there has been an increase in “identity based” violence against displaced persons. The agent submitted the applicant faced harm also from other Shias, as he is a Turi Pashtum and likely to face particular hostility from Hazara and other non Pashtun Shia, or as IDP person or outsider. The agent submitted Shia professionals face particular targeting and are at risk of target killings, kidnappings and of returning Turis. The tribunal noted it had not found information about targeting Turis in Lahore and provided time for the agent to provide information.

At hearing the agent submitted they target and kidnap people returning from overseas; it is not reasonable to relocate because the applicant’s psychological harm and fear due to so many male relatives being hurt with no profile and fear the same will happen to him; they target the educated and leaders; those Shias in government jobs have been for many decades; the places people can relocate to have shrunk over time in DFAT reports which indicates things are worse; the applicant has no connections and being Pashtun others will be suspicious that he is Taliban; Pashtun Shias are a minority and he will suffer ethnic and religious discrimination; he will face harm as an educated, returned from overseas, Turi Pushtan, Shia; he will attend the mosque regularly and face harm despite security; the Pakistan government are playing a double game and will not let go of the terrorist organisations and so do not offer state protection to Shias.

At hearing the applicant claimed he could not relocate to Lahore, Islamabad, Rawalpindi or anywhere in Pakistan as it is the same everywhere. The Lej have targeted him and originate from Lahore. They will find him and kill him. They do not accept Pashtuns in Lahore and will be suspicious of him and where he came from. He will be targeted because of he is educated and because he will have to show his ID card which will identify his name and he is Shia. He will not get a job because he is Turi, Pashtun Shia. The government offers no protection to Shias and meets with terrorists and appoints ex SSP officers to ministerial posts. His cousin was deported from [Country 1] and he was arrested and tortured when he returned and when he was released he was injured in a mosque blast. His other cousin was hurt standing next to him. His family doctor was killed in his clinic.  His brother was injured in mosque blast. He claimed Pashtun are not accepted elsewhere and Turis are the main target because they are fighting the Taliban; there is an increase in terrorist activity with IS leader visiting Lahore from Syria to get allegiance. His cousin appears on [a foreign] news story, where he was being checked before going to the mosque. He and his family (even after the blast) continue to attend the mosque. When the tribunal expressed doubt that he would attend the mosque when in hiding, he said he did not attend after he was attacked.   When the tribunal expressed doubt that his family would cease work and school after a nearby attack but continue to attend the mosque after being injured, the applicant said education was not more important than life but they want them to stop attending the mosque and religion is more important.

The tribunal has considered the claims and submissions about relocation.  The tribunal has also considered DFAT reports which refer to and collate information from number of sources and are recent. The tribunal is mindful the DFAT reports are compiled with the greatest degree of scrutiny of information, independence and verification, with adequate research and a great degree of accuracy. The tribunal is also mindful that the February 2015 DFAT reports is recent and more detailed than many other reports on which the applicant relies and gives the former more weight. The tribunal has also referred to South Asia Terrorism Portal (SATP) which is independent and authoritative about levels of violence in Lahore.

DFAT reports that the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence, particularly outside of FATA, Khyber Pakhtunkwha and Balochistan.[33]  DFAT has observed that in practical terms, internal relocation of Shias occurs with relative frequency due to family connections and employment opportunities[34].

[33] DFAT country report 2.25

[34]DFAT Country report 5.14-5.19 and DFAT Shia report 5.4 -5.5

The Tribunal noted there is a sizeable Shia population in Lahore and state protection is more available and Taliban or other militant Sunni activities are less prevalent in Lahore.[35] The Tribunal referred to information from the SATP indicating a lesser number of terrorism related incidents in Lahore and that most incidents reported by SATP in Lahore were of arrests. Where there were fatal incidents, the victims were militants, police or security forces and one journalist – with the exception of a bomb blast injuring 17 persons in a market. [36] 

[35] DFAT Country report 2.25, 2.275.14- 5.17 Shia report

[36] SATP report Folios 128-124

There have been a number of attacks on Shia Muslims at Ashura processions in Pakistan in the past, although there is considerable information the police in Lahore do take active steps to boost security in preparation for Moharram, [37] including calling out mass troops with air support. Further, DFAT reports that official security for mosques and processions are put in place on a case by case basis related to the level of threat and resources available. This can include shutting down mobile phone services, deploying increased police to patrol. The government has also introduced a ban on loudspeakers at mosques for hate speech and other measures are often put in place to pre-empt communal tensions. The army has also been put on standby to respond to attacks and community level violence. The tribunal does not accept the government does not offer protection or is against the Shias or in cahoots with the terrorists or militant groups. The government has continued to ban groups and be heavily involved in military operations to combat insurgent and militant groups in Pakistan. The tribunal accepts however a lack of resources limits the ability to protect the Shia community at all times and in all places given the population is large and dispersed.[38]

[37] See: ‘Security threat in Muharram: Lahore police deploy 12000 personnel & declare 200 places sensitive’ 2013, Shiite News, 26 November  ‘CCPO reviews security arrangements for Muharram’ 2013, Pakistan Today, 27 November  ‘Security beefed up in Lahore for Muharram processions’ 2013, Press Trust of India, Source: NDTV, 24 November ' Hussain, A 2013, ‘Ashura in Lahore amid tight security’, The News International, 27 November < DFAT Shia report 5.1-.5.3

Further the DFAT report considers Islamabad and Lahore are relatively free from politically motivated terrorist and sectarian violence states. DFAT assess in general (other than in some areas, like the applicant’s region), there is a low risk of sectarian violence for Shias by militant groups and attacks against Ashura processions pose the greatest risk for most Shias.[39] However, given the size and yearly frequency and the violence is mitigated by significant efforts of authorities to process processional routes and protection DFAT assess the overall risk to be low.[40] DFAT further assesses the overall levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan and sectarian violence has declined since the 1990s.[41]

[39] DFAT Shia report 4.4- 4.5. 4.21-4.23

[40] DFAT Shia report 4.4 – 4.5 and 5.1- 5.3 and DFAT country report 5.3

[41] DFAT Shia report 4.21 – 4.22

The Tribunal is mindful that Taliban, LeJ and other Sunni militant groups are present in the Punjab and in particular the LeJ is based in Lahore. However, the DFAT Shia report further states tensions between sects and militant groups are generally higher where madrassa and militant networks, such as LeJ, have strongholds in the Punjab. Lahore is not listed as such a stronghold.[42]

[42] DFAT Shia report 4.23

The Taliban is located primarily within the FATA however reports indicate that the Taliban is capable of reaching targets in Lahore.[43] The Tribunal has had regard to reports and agent submissions the government appease Sunni militant groups and act with impunity. However, the tribunal notes country information that the government frequently bans terrorist groups or violent organisations, though several operate in the country under new names which highlight the difficulties.[44]

[43] ‘TTP Claims Responsibility of Lahore Blast’ 2011, The International News, 25 January Accessed 13 December 2011, see also: Rehman, Z. U. 2011, ‘Growing Urban Islamist Militancy in Punjab Province Poses New Challenge for Pakistani Authorities’, Terrorism Monitor, Vol. 9, Issue 39, October, p.6 < Accessed 12 December 2011.

[44] DFAT country report 3.32

The Immigration and Review Board of Canada (“IRB”) issued a paper in January 2014 on the issue of treatment of Shias, including in Lahore. That report was based on communications the IRB had with various non-government organisations in Pakistan, including the Middle East Media Research Institute (MEMRI), Jinnah Institute, Asian Human Rights Commission (AHRC), and the Human Rights Commission of Pakistan (“HRCP”), as well as an unnamed PhD candidate from McGill University, in Montreal, Canada. Drawing on these sources, the report includes: 

According to the editorial team of the South Asia Studies Project of MEMRI, the situation for Shia Muslims in Lahore and Multan is “extremely serious” (MEMRI 17 Dec. 2013). The same source stated that there have been “numerous killings” of Shia in these cities and that “[l]ike elsewhere in Pakistan, Shia Muslims are being systematically targeted and shot dead by Sunni militants who do not consider them as Muslims” (ibid.). In a telephone interview with the Research Directorate, a representative from the Jinnah Institute stated that, while there is less violence against Shia in these areas by comparison to Quetta and Karachi, both Lahore and Multan are affected by “a new level of extremism in Punjab province” (Jinnah Institute 16 Dec. 2013). He said that there have been violent attacks and targeted killings in both cities (ibid.). He described Lahore as a “new flashpoint” for sectarian violence against Shia and noted an increase in the number of Shia being targeted there (ibid.). The AHRC representative said that the situation in Lahore and Multan is “no different” than other areas of Pakistan in terms of the lack of safety and protection for Shia (17 Dec. 2013).

The representative of the HRCP, while corroborating that there have been targeted killings against Shia in Lahore and Multan, expressed the opinion that the problem is not “severe” for Shia in these cities (HRCP 13 Dec. 2013). Similarly, the PhD candidate described Lahore and Multan as “relatively more educated cities” and said that they do not have the same level of “sectarian violence or hatred” as other “remote” areas of Pakistan (PhD Candidate 11 Dec. 2013). He expressed the opinion that while there may be “sectarian tensions” in Lahore and Multan, that sectarian violence and extremism is not part of the beliefs of mainstream society in these cities (ibid.).[45]

[45] Immigration and Review Board of Canada 2014, PAK104713.E, 9 January, Section 2.1.1

The Tribunal finds there is a sizeable Shia population in Lahore and state protection is more available and Taliban or other militant Sunni activities are less prevalent in Lahore.[46] For instance, according to SATP while there were a few sectarian attacks in 2011 in Lahore, this has declined significantly in recent years, with two sectarian attacks in 2013 (an ophthalmologist and Shia leader) and one in 2012 (Shia lawyer). While in 2015 there have been fatal incidents in Lahore, these were on Christians in March 2015 and police.[47]

[46] DFAT Country report 2.25, 2.275.14- 5.17 Shia report

[47] type="1">

The tribunal does not accept the applicant faces a greater risk of harm as an educated Shia as there are many educated and professional Shias and they make up a large number of high level professions. The tribunal accepts that there have been reports of targeting of prominent members of the community such as doctors, lawyers or Shia clerics, but the tribunal does not accept that the applicant has such a profile. The applicant has a [tertiary qualification] and has worked in the [past].

Further, DFAT notes many large urban areas such as Lahore are home to mixed communities and offer greater opportunities for employment, access to services and higher level of protection.[48]  DFAT also notes because of Pakistan’s size and diversity, internal relocation offers a degree of anonymity and opportunity to seek refuge from discrimination and violence.  Further, there is no evidence that people from Peshawar or Parachinar are specifically targeted in Lahore. The tribunal does not accept he faces any harm from other ethnic groups, Sunnis or because he is from Peshawar or identified as a Shia Pashtun Turi from Parachinar, or an outsider or displaced person.

[48] DFAT country report 5.16 Shia report 5.4 and 5.5

The tribunal has not accepted he is specifically targeted or wanted by LeJ, the Taliban or anyone. The tribunal does not accept that he faces a real chance of harm or risk of harm because of his education, past work, returning from overseas even as a Shia Muslim, Turi Pashtun from Peshawar or Parachinar.

The Tribunal accepts that the ongoing sectarian attacks in Lahore indicate that there is some level of risk of harm to Shias in Lahore and accepts that he will attend mosques. However the significant number of Shias living in Lahore, together with the sporadic nature of those attacks, the decline in attacks in other areas as well and DFAT’s assessment that Lahore remain relatively free from the threat of militant, sectarian and politically motivated violence cause the Tribunal to consider that the chance of the applicant being harmed in such an attack in Lahore or travelling to Lahore is remote, and therefore not real.

The tribunal has considered if the applicant will be targeted for harm as a returnee from a western country or as a progressive educated Shia but the weight of independent sources before the Tribunal do not indicate this and the Tribunal does not accept it to be the case. Rather DFAT reports that western influences remain pervasive in the large urban centres of Pakistan, that western films, and music are widely available and western branded chain stores operate throughout Pakistan.  DFAT reports that Pakistanis living abroad return to Pakistan frequently to visit relatives and are not at any increased risk because they have spent time in western countries and it has no evidence indicating that individuals would be subject to violence or discrimination as a result of having spent time in western countries[49]. 

[49] DFAT 3.62-3.63

Having considered the country information, evidence, submissions and the applicant’s circumstances, the tribunal is satisfied the applicant does not have a well-founded fear of persecution for any of his claimed reasons in Lahore.

Reasonableness

Having found applicant does not have a well-founded fear of persecution for any of his claimed reasons in Lahore the Tribunal will now go on to consider if it would be reasonable for the applicant to relocate to another part of Pakistan, such as Lahore. The tribunal will consider whether there is any appreciable risk of harm to the applicant which would make it not reasonable for the applicant to relocate to Lahore. The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant. [50]

[50] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.

The tribunal has considered the applicant and agent submissions in relation to the reasonableness of relocation. The Tribunal does not accept being from Peshawar, identified from Parachinar, or educated Shia Turi Pashtun and having to seek employment, accommodation, resettle with no connections will make it unreasonable to relocate. The tribunal considers the applicant is an educated, skilled, single young man who speaks Urdu, and Pashto and at the hearing communicated well in English. The tribunal accepts he does not have networks outside his home area, but the applicant has also shown his resourcefulness in travelling overseas and living and working in Australia. He has found employment in Pakistan and Australia in the past and has qualifications and experience. The tribunal is satisfied he would be able to re-settle in different city in his home country.

The Tribunal is mindful the applicant will face difficulties relocating to Lahore, finding work and accommodation. The Tribunal accepts that it may take the applicant some time to re-establish himself in terms of employment and that there are high levels of unemployment throughout Pakistan. The tribunal does not accept that he will be unable to find a job sufficiently paid to allow him to relocate and live Lahore as he is educated, and has work experience as a data operator in Pakistan. The tribunal does not accept he is not educated or could not get a job because he does not have a master’s degree. Country information is that only 37% of the population enrol in secondary education and the applicant has completed a tertiary qualification.[51] Further, while in Australia he has worked in [various jobs] and sends $1300 a month home to Pakistan. The tribunal considers the applicant has shown himself to be very resourceful and capable of supporting himself in Pakistan and Australia, as well as sending money home to his mother. The tribunal finds he will be able to do so again in Lahore.

[51] DFAT country report 2.16

The Tribunal does not accept that the fact that he is a Turi, Pashtun, Shia from his home region or because he is educated means that he will be discriminated against in terms of accommodation or employment in Lahore, given advice from DFAT indicating that Shias are a diverse group, occupying the lowest levels and higher levels of Pakistan’s economic and social strata. The evidence does not indicate that Turi or Shias are discriminated against in terms of government positions, the police, the military or the private sector.[52]The Tribunal is not persuaded that he will be discriminated against and will be targeted and no one will rent to him. The Tribunal prefers the country information in the DFAT report that many people from the applicant’s home region have successfully relocated to other cities in Pakistan, including Lahore. DFAT notes many large urban areas such as Lahore are home to mixed communities and offer greater opportunities for employment, access to services and higher level of protection.[53]  Further, the tribunal does not accept that people from his home area or Turis are specifically targeted in Lahore as country information[54] does not support that claim.

[52] DFAT Shia report 3.9-3.10

[53] DFAT country report 5.16 Shia report 5.4 and 5.5

[54] See satp data sheets and DFAT country report

The tribunal has had regard to the agent post hearing submissions and newspaper reports about slums being demolished in Islamabad. While some of those may be Pashtuns, the tribunal does not accept the applicant faces similar problems as it does not accept the applicant will not be able to provide for himself sufficiently, as he has done in the past, particularly given his education and past work experience. As discussed the tribunal considers the applicant is and has been particularly resourceful in earning a livelihood in Pakistan and Australia and finds there is no reason he could not continue to do so in Lahore. In any event, the demolition of slums relates to Islamabad, not Lahore. The Tribunal does not accept that having to find work, accommodation in a new or unfamiliar place or living conditions, in Lahore is unreasonable. The tribunal does not accept he faces harm from militants, Taliban, other ethnic groups, Hazaras, Sunnis or because he is from Peshawar or identified as from Parachinar, a Turi Pashtun Shia or an outsider, displaced person, or educated Shia Turi Pashtun in Lahore.

The tribunal accepts that he will continue to practise his Shia religion and attend mosques and yearly processions. The Tribunal accepts the applicant’s family name and attendance at Shia Mosque will make him more readily identifiable as a Shia.  However, when considering his attendance at processions, given the size and yearly frequency of procession, the violence is mitigated by significant efforts of authorities to protect processional routes, DFAT assess the overall risk to be low.[55]  On the basis of the evidence before it, and the country information referred to above[56] the tribunal does not accept the applicant faces any appreciable risk of harm. Further, The tribunal does not accept the level of risk of attacks by the LeJ, Taliban or other extremist groups or other Sunnis, or ethnic groups makes it unreasonable for the applicant to relocate to Lahore. On the evidence, the tribunal finds that even having regard to the applicant’s religious practice and circumstances and sectarian violence that it is reasonable for him to relocate to Lahore.

[55] DFAT Shia report 4.4 – 4.5 and 5.1- 5.3 and DFAT country report 5.3

[56] Shia report 4.4-4.5 4.21 – 4.23 Country report 5.1- 5.3

The Tribunal has had regard to the country information and agent submissions about attacks in Pakistan. The tribunal gives weight to the fact that according to the Pakistan Institute of Peace Studies over 85 per cent of the recorded incidents of sectarian violence in Pakistan occurred in the applicant’s home area, Karachi, Quetta and Gilgit.[57]  The Tribunal accepts that there is generalised violence throughout Pakistan, and that there were 13 terrorism related fatalities in the first month of 2015 in Punjab. The Tribunal has also accepted, , that there have been attacks against Shia Mosques and other attacks in Lahore in 2010 and 2011.[58]

[57] Pakistan Institute for Peace Studies

[58] at RA and Urdu Bazaar in 2011 and 2010 and Lahore patron saint Shrine in 2011 see satp.org Punjab date sheets

However the incidents in Lahore in 2015 are sporadic and the most recent reports in 2015 relate to the arrest of militants. According to the South Asia terrorism portal (as at 28 June) there were no attacks in 2014 in Lahore and in 2015 only three attacks, two on police and one on a Christian church.[59] . Further, DFAT assesses the overall levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan and sectarian violence has declined since the 1990s.[60] Given the low levels of sectarian violence in Lahore, and the applicant’s lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shias in Lahore, and the sporadic nature and level of incidents and the applicant’s circumstances, the tribunal does not accept there is any appreciable risk harm for the applicant in Lahore.

[59] see and DFAT Shia report 4.21 – 4.22

The Tribunal is also not satisfied that the applicant will have to modify his religious practice or activities in Lahore in order to avoid the harm he fears.

The Tribunal accepts that it will be concerning for the applicant to live in a new city which has experienced some violence and in the context of his own fear because his cousins and brother were harmed previously in his home area. However, the Tribunal does not accept the fact that the applicant may be concerned for his safety as a result of violence or attacks to the extent that he will have to modify his conduct or that it will affect his ability to obtain employment or accommodation or practice his religion in Lahore. The Tribunal is not satisfied that such factors make it not reasonable for the applicant to live and work in Lahore.

Even having regard to the country information about Lahore violence and attacks, and the applicant’s circumstances (including his education, work prospects, language, religion, race, origin and his fear because some of his family have been harmed in the past) the tribunal finds it would be reasonable for the applicant to relocate to Lahore.

For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the applicant’s circumstances, for him to relocate to Lahore.

On the basis of the evidence before it, the Tribunal is not satisfied that the level of chance that the applicant would suffer harm in Lahore for reasons of his being an educated, Turi Pashtun Shia from his home region, identified from Parachinar, or as an outsider or displaced person or any political opinion or membership of a particular social group would make it unreasonable for him to relocate to Lahore.

The Tribunal has considered the totality of the applicant’s circumstances as a young educated male Pashtun Shia Muslim from Peshawar (identified from Parachinar) who belongs to the Turi tribes and who left Pakistan to seek asylum and will be returning to Pakistan as a failed asylum seeker, having spent time in Australia, a Western country. However, even taking into account the cumulative effect of these circumstances, the Tribunal is satisfied, having had regard to the applicant’s particular circumstances, the circumstances he would reasonably be expected to face in the place of relocation, and the impact on the applicant of being sent to the place of relocation, that it is reasonable for the applicant to relocate to Lahore.[61]

[61] SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205, per Manousaridis, J at [45].

The Tribunal finds, therefore, that there is not a real chance that the applicant will be persecuted for reasons of his religion, political opinion or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in another part of Pakistan, such as Lahore. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.

Complementary Protection

The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions, which require the Tribunal to consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country that there is a real risk that he will suffer significant harm, as that term is defined.  The Tribunal has accepted that there is a real chance that the applicant would face serious harm on his return to Peshawar. For the same reasons, the Tribunal is also satisfied that there is a real risk that the applicant would face significant harm upon his return to Peshawar, including arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment.

Section 36(2B) of the Act provides that there is taken not to be a real risk if it would be reasonable for the applicant to relocate to an area where there would not be a real risk that he or she would suffer significant harm. For the reasons discussed above, the Tribunal finds that it is reasonable for the applicant to relocate to an area of the country outside Peshawar, such as Lahore where there would not be a real risk that he will suffer significant harm. As discussed above, the Tribunal has found that applicant will be able to reside safely in other parts of Pakistan, in particular in Lahore. The Tribunal does not accept that the applicant faces a real risk of harm on any other basis, including because he has lived in a Western country, Australia, and sought asylum in that country, or because of any concern or fear he may have because his family have been harmed in the past, or is an educated,Shia from Peshawar with origins in Parachinar or as a result of any other factors. 

The Tribunal finds, therefore, that the applicant will be able to relocate to another part of Pakistan where there is not a real risk that he will suffer significant harm. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm.

CONCLUSIONS

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

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

DECISION

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

Michelle Grau
Member

RELEVANT LAW – ATTACHMENT A

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

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

The tribunal has had regard to the current April 2015 DFAT reports on Pakistan and Shias in Pakistan.