1401348 (Refugee)

[2016] AATA 3970

1401348 (Refugee) [2016] AATA 3970 (30 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401348

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Meena Sripathy

DATE:30 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 30 May 2016 at 4:28pm

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).

2. The applicant who claims to be a citizen of Pakistan, arrived [in] Australia [in] August 2012 as an unauthorised maritime arrival. He was granted a Bridging [Visa] [in] November 2012 and applied for the present visa [in] December 2012 and the delegate refused to grant the visa [in] January 2014.

3. The issues in this case are whether the applicant has a well-founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

5. Information in the application indicates the first named applicant (the applicant) is a [age] male from [Town 1], Kurram Agency, Pakistan.  He is of Pashtun ethnicity and Shi’a religion.  He is single.  He has a mother [and siblings] in Pakistan.  He has one [brother] in Australia.   He speaks, reads and writes the Urdu language and speaks Pashtu. He indicates [number] years of education up to May [year], but he did not complete [school].  He had no prior employment in Pakistan as he was a full time student.

6. While arriving to Australia without any travel or identity documents, the applicant submitted copies of his Domicile Certificate and school records with his application ([DIBP file number], folios 2-6). He later provided a copy of his Birth Certificate to the Department.

7. Regarding his claims for protection the applicant provided a statutory declaration which includes the following information: In April 2012, while walking to college he was stopped by the Taliban and forced into a van. He was taken to a mountain and put in a cave.  It was dark and he did not know if it was day or night.  When he was in the cave he was beaten and not given much food or water. He did not know why they wanted to kill him, but as his father was killed several years earlier he believed they would act on their threats. One day he managed to escape from the cave while the Taliban was outside sleeping. He ran away to a house and asked for protection. They helped him and drove him home.  After this his mother didn’t allow him to return to college.  He stayed at home for about one month. His mother made arrangements for him to leave Pakistan. The applicant fears return to Pakistan because he believes the Taliban would catch him again and kill him. There is no safe place in Pakistan for him.  His father was killed in Peshawar City. His brother tried to find safety in Islamabad after receiving threats but the threats continued even when he moved.

8. On 6 November 2013 the applicant’s representative submitted a copy and translation of a newspaper report regarding the death of the applicant’s father and a medical report dated [in] October 2013 providing details of the applicant’s psychological condition.  The report states that he suffers from Post Traumatic Stress Disorder coupled with Panic Disorder, and recommends that his application for permanent residency be considered as soon as possible. 

   Entry Interview

9. [In] September 2012 the applicant had an Irregular Maritime Arrival Entry Interview with an officer of the Department of Immigration and Citizenship (as it then was).  Notes of that interview contained in the Department file (folios 120-128), included among his reasons for leaving his country: he was taken by terrorist people one day as he was leaving his college in the middle of April 2012. They took him by car to a cave in a mountain.  The journey was about 6 hours. He was there for one week.  They tried to kill him.  They tortured him a lot physically and did not give him food. He escaped after one week and went to a house.  The people there took him home.  His mother was so worried because her husband was killed, and [other family members] had been threatened. His brother was threatened in Peshawar while studying and went to Islamabad but received threatening letters there also. After that he came to Australia on a student visa. The applicant left [Town 1] [in] May 2012 for Peshawar, then to Lahore.  From there he travelled to [country] via [Country 1], and then to [country] from where he came to Australia by boat, arriving [in] August 2012.

   Protection visa interview

10. The applicant was interviewed in relation to this application by an officer of the Department [in] May 2013, and a copy of the recording of the interview is contained on the file.  The Tribunal has listened to the audio recording of the interview.  Details of evidence provided during the interview are included in the delegate’s statement of reasons, a copy of which he provided to the Tribunal with his review application.

11. [In] January 2014 the delegate refused the application.  In his reasons for decision, the delegate did not accept the applicant’s claim that he was kidnapped by the Taliban on the basis of a cumulative assessment of inconsistencies and contradictions in his account of the incident, and the delegate’s view that his evidence about the incident was also vague and evasive.  The delegate nevertheless accepted that the applicant had a well founded fear of persecution in his home region, being the FATA region, but concluded that he could relocate within Pakistan.

    Evidence before the Tribunal

12. On 21 April 2015 the applicant’s representative provided a submission in support of the applicant’s review, addressing why it was not reasonable for the applicant to relocate within Pakistan. The representative argued that his Shia religious identity is central to him and he should not be expected to hide that identity to avoid persecution, citing Appellant s395/2002 v MIMA as authority for the view that the applicant would be impermissibly forced to act discreetly by modifying his practice of Shi’a Islam and related cultural activities to avoid a real chance of persecution. The representative argued that in addition to his accent and ID card which are distinguishing features, the applicant’s surname also reveals his ethno/religious identity. The submission refers to recent country information indicating an increase in targeted Shia killings in Pakistan, and also refers to the nascent threat for Shia Pashtuns of IS reportedly emerging in parts of Pakistan.

13. The applicant was invited to attend a hearing at the Tribunal on 29 April 2015 which, on 28 April 2015, was postponed at the request of the applicant to allow his newly appointed representative to obtain relevant documents under FOI from the Department.

14. On 6 October 2015, the applicant was advised of a change in the member constituted to review the case and he was invited to attend a hearing at the Tribunal on 4 November 2015.

15. On 2 November 2015 the Tribunal received a further submission in support of the applicant’s case.  The following new information, not provided earlier, was included in the submission:

    ·The applicant’s family are from a well known family in [Town 1] as his [Relative 1] was a local government head.

    ·His family are strict adherents to Shia Islam and his father was well known in the Shia [Town 1] community due to his activities with the local mosque, and he took a leading role during Muharram.

    ·The applicant’s family’s house was one of the first houses to be targeted when extremists groups entered [Town 1] in mid 2007 due to their well known status. The applicant and his family were not permitted to openly practice their religious beliefs and were afraid to enter the mosque for fear of being targeted and killed. 

    ·Sometime in late 2007 when the applicant’s father was returning home from the mosque, it was attacked and he was injured. He was rushed to [hospital] and from there by helicopter to [a] hospital in Kohat and then flown to Peshawar for further treatment where he remained for one month.  After his release from hospital, his father was staying with friends in [location] (sic) from where he was attending appointments at the hospital. One day in early 2008, while walking on a street with his [Relative 2], the applicant’s father was shot and killed by firing from a passing car. His [Relative 2] reported the death to police but no action was taken. The applicant believes his father was targeted due to his activity in the Shia community in [Town 1].

    ·The applicant’s brother, [Mr A], fled to Australia on a student visa after receiving threatening letters from the Taliban.  [Mr A] applied for a protection visa after arriving.

16. The submission addresses credibility concerns arising from the delegate’s decision relating to the news article submitted about the applicant’s father’s death, and his evidence about the kidnapping. In relation to the news article, it is submitted that it is a genuine news article but it was written because the applicant’s brother contacted the newspaper as he was concerned for the safety of his siblings and wanted to put pressure on the government to act, and that is why it contains personal information about the applicant and his family. In relation to the applicant’s evidence about the kidnapping, the representative refers to the trauma suffered by the applicant and difficulties faced by refugee applicants as a result of having to give multiple accounts of events and through interpreters.

17. Finally the submission draws the Tribunal’s attention to further updated country information about attacks against Shia Muslims in 2015.  It makes specific arguments that the applicant has a well founded fear of persecution on the basis of his imputed political opinion against the Taliban due to his Shia religion and membership of the Turi tribe; as a Shia from [Town 1]; as a returnee from Australia; and as an educated Shia and makes submissions addressing state protection and relocation.

    Tribunal hearing 4 November 2015

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

19. The applicant confirmed his current living arrangements and told the Tribunal he is presently working full [time]. He has had this job for over one year, and prior to that worked for the same company in [city] for a period of three months, since early 2013. 

20. He lived with his brother in [city] before moving to [the current city].  His brother is [studying]. He came to Australia to study and continues to study to this date. The Tribunal asked the applicant if he was aware if his brother made an application for protection.  He said he did, but it was refused by the Department and the Tribunal on review.  The applicant said he did not know the reasons why it was refused.  He was not in Australia at that time. After the refusal, his brother continued his studies. 

21. The applicant confirmed his family circumstances.  He has a mother and [siblings] in Pakistan. They all live together in [Town 1]. His father is deceased. His mother has [number] siblings, [a number] of whom live in [Town 1] and one [sibling] is in [Country 1]. His father has [siblings], all of whom live in [Town 1].  The applicant confirmed that apart from one [relative] in [Country 1] and his brother in Australia he has no relatives living anywhere else in Pakistan or overseas.  He confirmed he is Shia, of Turi Pashtun ethnicity.  His father is from the Turi tribe, his mother is [ethnicity].   He had never travelled outside of Pakistan prior to his departure in 2012.  He left Pakistan on his own passport which he obtained in 2010.  When asked why he obtained a passport in 2010, the applicant said at that time the family had a plan to travel to [country], for a religious [pilgrimage]. However they did not travel there.

22. The Tribunal noted new information provided by the applicant in the most recent submissions, relating to his family being well known in [Town 1] and asked if he would like to elaborate on this.  He said his [Relative 1] was [an official] in local government. He was appointed to [role deleted].  He was doing this role for as long as the applicant can remember, from when he was a young age.  His [Relative 1] passed away before his own father’s death, around 2006 or 2007.  He died from illness. He said because of this his family had a prominent role within the community. He said neighbouring Sunnis did not like his [Relative 1] on the basis of his role as [official] in the community.  His family was the first to be targeted when fighting broke out in 2007.  His father was targeted.  When asked to clarify what he meant by this, the applicant recounted what happened to his father in 2007.  He was on his way to the mosque for prayers when there was an attack and blast and his father was badly injured.  He was taken to hospital and from there by helicopter to Kohat and then to Peshawar for treatment.  After being in hospital for one month in Peshawar he had to stay on there to attend regular medical appointments for some time after. One day while walking on the road with his [Relative 2], his father was shot at, and killed, from a white car that had been watching them for some days.  His [relatives] made a report of the incident. 

23. The Tribunal noted that the applicant would have been quite young at that time, and asked how he learned about what happened. He acknowledged that he was around [age] years old. His [Relative 2] told him the story.  After he died, a post mortem was done on his father’s body and then it took some 14 days to bring the body to [Town 1] as the roads were closed and they had to go via Afghanistan.  He was not buried for some 14 days after his death because of these difficulties. The Tribunal noted that the decision record of the (differently constituted) Tribunal regarding his brother’s application for protection, refers to some documents submitted about his father’s death but it notes he has not submitted these and asked him why.  In response the applicant handed up a bundle of documents. He stated he provided these to the Department at the detention centre after he arrived. The Tribunal noted that the documents handed up included what appears to be a death certificate relating to [name]; a Post Mortem Report; a Death Report and a First Information Report relating to the claimed incident. Some of the documents were in English but others were untranslated. The representative agreed to provide these documents together with an explanation and translations where necessary and submissions as to their relevance to his claims after the hearing. 

24. The Tribunal asked the applicant about what happened to him in 2012.  The applicant recounted the incident in substantially the same manner as he had previously in his written claim and to the delegate.  He told the Tribunal he was on his way to college in the early morning. He had taken a short cut from his house to the college along a road where there was water flowing. He was on his own.   A van came up, and the people inside forced him to get in.  He tried to struggle but they forced him in and pushed his head to his feet. He couldn’t see anything. There were about [number]-[number] people in the van with him. They wore long clothes, turbans, had long beards and had guns. They drove for a long period, towards the mountains. When they stopped he saw a hole or cave and they forced him inside.  They kept telling him they will kill him. They tortured him a lot, beating him, but they did not tell him why.  The cave was very dark, they had to use a torch to bring him water and food.  They fed him minimally. They came and went from the cave.  He doesn’t know how many men were there.  After about one week, he decided to take a risk and escape.  He approached the front of the cave and saw the two camps outside where the men were staying.  He saw they were sleeping and quickly and quietly ran out.  He believes it was early morning time, given the light in the sky. He ran until he saw a house and knocked on the door. A woman answered and he told her what happened to him and asked for refuge. She took him in, fed him and allowed him to sleep that night.  The next morning, her son or husband took him home.  He sat in the middle of the vehicle so he was not visible.  They dropped him off on his street. When he returned home his mother was sick with worry. Soon after this she arranged for him to leave Pakistan. 

25. The Tribunal questioned him about the account he had provided. In response to how long he was in the van, he said he doesn’t know but he thinks it was about 5-6 hours because it was early morning when they took him and when they arrived at the mountain the sun was high in the sky. They did not stop along the way.  In response to who the men were, the applicant said he does not know but he believes they were from Lakshar –e -Jhangvi or Lashkar-e- Taiba or Sipah–e-Sahaba or such groups because he knows that the Sunni community give refuge to them in [Town 1]. When pressed by the Tribunal about what they said to him during the journey or while at the cave about who they were and why they took him, the applicant maintained that they said nothing which identified who they were specifically or why they took him.  He said all they said over and over again was that they would kill him. The Tribunal put to the applicant that it may find it difficult to accept that, in the course of a 5 hour journey, and having held him for one week, he would have no more specific information about the identity of the group or their motivation in taking him.  In response the applicant said they spoke among themselves and on the telephone but they had a different accent and so he could not really understand them. He maintained they did not engage him in direct conversation and all he heard them say on the telephone was that the ‘job was done’.  Regarding why he did not discover anything more while he was in the cave, he said the cave was shaped in a curve and he was in a back corner where it was dark so he could not see anything.  When he made his escape he saw that there were two camps at the front of the cave where the men were staying.  He also observed that the van was not there at the time he left. 

26. The Tribunal put to the applicant that it may find his account of this incident implausible, in the sense of difficult to believe.  It may not accept that he would be taken, driven for 5 hours and held for one week, and not be able to provide any more identifying information about his captors than he has provided. It may also find his account of how he escaped not to be plausible. In response the applicant had no further details to provide. He said he also did not know why they took him and why they were keeping him.  In his mind he was thinking it may be about his [Relative 1]’s role in the village or his father, and the fact that they had named particular people in the FIR relating to his death, but he did not know.  He explained that when he escaped he did so quickly and quietly.  He took a risk because he thought he may be killed if he didn’t.  He confirmed that he did not know the identity of the people who captured and held him.

1. The Tribunal asked the applicant if, prior to his father’s injury and subsequent death, anyone in his family experienced any harm.  He said his father had been verbally abused and blamed for things in the past.  The Sunnis do not like them because they are Shia.  His father was involved with the local imambargah and so he was visible for that reason.  When the fighting broke out in 2007, his father was the first Shia in the community to be killed by the Sunnis.

2. The Tribunal asked the applicant about the article he submitted with his application regarding his father’s death. It noted that no date is provided in the translation provided to the Department. The applicant had a copy of the original article before him and advised that the date was [in] July 2013. This information was confirmed by the interpreter. The Tribunal asked the applicant how the article came to be published and why, given it was 5 years after his father’s death.  He explained that his brother, [Mr A] had returned to Pakistan at that time and he arranged for this article to be produced because his life and that of his siblings was still in danger.  He did it to put pressure on the authorities to provide protection. 

3. The Tribunal asked the applicant about his brother’s return to Pakistan.  He confirmed that he returned in 2013 and again in 2014.  He went back because his mother was not well and she had to undergo an operation.  His siblings are all much younger so his brother is responsible for the family. He stayed for one to two months each time.  No incident occurred on either occasion but it was not safe.  He took a lot of money and paid people to accompany him. It was a risk but he had to take it for family reasons. The Tribunal asked why his numerous [relatives] could not have assisted the family.  In response the applicant said his family is estranged from the [relatives].  On his mother’s side they have not been in contact for many years. He does not know the details as he was too young.  All he knows is that there is no contact from either side.  On his father’s side, there was a dispute about property after his father’s death and they will not look after his family any longer.  The Tribunal asked the applicant who is financially supporting his brother’s studies in Australia.  He said his brother works and he also helps him out financially.  The Tribunal put to him information in his brother’s protection visa application indicates his [relative] supported him in his student visa application, and this may contradict his evidence that the [relatives] are estranged and not supportive of his family.  The applicant said he did not know about this.  He did not know how his brother arranged his student visa. 

4. The Tribunal asked the applicant if there were any other incidents affecting his family. He said the family continues to be at risk.  They are now looking to send his next brother outside for the same reason of safety, but his mother does not want him to go.  When asked if there has been any incident affecting this brother, the applicant said he was injured in a blast.  He said he cannot remember much about it. When pressed for more about this, he said it happened around 2011.  There was a small rocket which hit their house.  His brother was outside and his hand was injured.  The Tribunal put to him it would seem strange that he would not recall the details of this incident, given that it occurred when he was still in Pakistan. It noted that he has not mentioned this incident earlier in his written claims or the interview with the delegate or at the detention centre. In response the applicant referred to problems he has had with interpreters at previous interviews and he may not have understood the questions.  The Tribunal put to him its concern that he fabricated this claim given he has not mentioned it previously, and is not able to provide much detail about it. In response he again referred to problems he had with interpreters and that he was afraid to say things before because he believed the interpreters were Sunni. He confirmed that since this incident his mother and siblings have remained living at the same address.

5. The Tribunal asked if there is any other reason he is afraid to return to Pakistan. He said he is not safe there. Even though his brother [Mr A] has gone back, they are not safe. He has had to be very careful when he has gone back, and does not tell anyone. 

6. The Tribunal discussed with the applicant the issue of relocation, asking him whether there is another part of Pakistan he can live in where he would not face serious harm.  It also asked if there are any reasons why it is not reasonable for him to relocate there.  It put to him independent information that indicates there is no legal impediment to freedom of movement in Pakistan; there are some 36 million Shias among the total population; he may be able to live safely in large urban centres that have mixed ethnic and religious populations such as Lahore, Islamabad and Rawalpindi which have significant Turi populations, and that the government has taken greater steps to provide protection to Shia communities especially during religious events and processions.  It also noted that his brother had lived and worked for a period in Rawalpindi. The applicant said Sunni people from [Town 1] have moved all over the country and this is why he cannot live anywhere and be safe from them.  They know him.  That is why his brother had to arrange for the article to be published 5 years after his father’s death, because they are still at risk. If he could be safe he would not have made the dangerous journey here. He maintained that he will not be safe as long as [Town 1] Sunnis are alive because they are in close contact with groups such as LeJ and SSP and they will find him and kill him. His brother received threats when he lived in Peshawar and Rawalpindi so he was not able to live there safely.  He does not know a lot of detail about this because it was around the time of his father’s death that his brother left.

7. In response to the Tribunal’s question of who he fears will harm him if he returns, the applicant said that he fears harm from Sunnis in general, and also the groups that they support.  He fears harm from the particular people that were named in the FIR as responsible for his father’s death.  He also fears harm from the Shia community who pressure him to join the fight against the Sunnis.  He escaped because he did not want to go to fight them in [Town 1].

8. On 6 November 2015 the Tribunal wrote to the applicant under section 424A of the Act to invite his comment or response to information which would, subject to his comment or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal provided particulars of information given by the applicant’s brother in his protection visa application and his brother’s movement records.  The Tribunal explained the relevance of that information and the consequences of its reliance on it in affirming the decision under review.

9. The applicant provided a response to the Tribunal’s invitation on 3 December 2015, including a statutory declaration from the applicant’s brother addressing concerns raised the Tribunal’s letter and submissions in response to other matters raised. Details of information provided in the applicant’s response is discussed further below.

   FINDINGS AND REASONS

10. A summary of the relevant law is set out at Attachment A. 

    Nationality

11. On the basis of the evidence of the applicant’s passport the Tribunal finds that he is a citizen of Pakistan and Pakistan is his country of nationality for the purposes of this assessment of protection obligations.

    Consideration of applicant’s claims

12. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. 

13. The Tribunal is mindful 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 (1993) 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 Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

14. The applicant has advanced the following claims in the present application. He is of Pashtu ethnicity and Shia religion, and was born and lived in a village close to [Town 1], Kurram Agency, in the Federally Administered Tribal Areas (FATA) of Pakistan. He claims he was kidnapped by a group of Taliban in April 2012, and taken to a cave in a mountain and beaten and threatened with death. He claims he managed to escape, but since that time he and his family have been afraid for his safety. He claims his father was injured in an attack in 2007 and subsequently shot and killed by Sunni extremists in [2008]. He claims his brother received threatening letters when he was studying and living in Peshawar and Rawalpindi. For all of these reasons the applicant’s family made arrangements for him to depart Pakistan for his safety and he came to Australia. Before the Tribunal the applicant also claimed that [another] brother was injured in a bomb blast in 2011.

15. In making its findings on the evidence before it and reaching its conclusions about his application, the Tribunal has considered the information in the Department’s files before it, including his application for the Protection visa, the various documents he provided to support his claims, his evidence to the delegate at interview and the evidence he gave when he appeared before the Tribunal.  It has also considered evidence referred to in the decision of the (differently constituted) Refugee Review Tribunal relating to the application for protection made by the applicant’s brother, [Mr A] [case reference [number]] as well as independent information regarding relevant matters and conditions in Pakistan, including information referred to in submissions made by his migration agents.   

16. On the evidence and information before it the Tribunal accepts that the applicant is of Turi Pashtun ethnicity, with [ethnicity] mother and Turi father, and follows the Shia religion.  It accepts he was born and lived in a village close to [Town 1], Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan. It accepts that he is single and has a mother [and siblings] who reside in [Town 1].  It accepts he has one [brother] in Australia, and a [relative] in [Country 1], but that apart from these family members all his family and extended family reside in [Town 1].

    Claims that applicant’s family are well known family in [Town 1]

17. In written submissions made to the Tribunal, the applicant claimed that his family is well known in [Town 1] as the applicant’s [Relative 1] was a local government head. It was submitted that the applicant’s family are also strict adherents to Shia Islam. The applicant elaborated in his evidence to the Tribunal to say his [Relative 1] was [an official] in local government who was appointed to [role deleted], which gave his family a prominent role in the community. The applicant claimed his family was the first to be targeted when fighting broke out in 2007.

18. For the purposes of the present application and on the evidence before it, the Tribunal is prepared to accept as possible that the applicant’s [Relative 1] was a local government head and that his family are strict adherents of the Shia religion.  

    Father’s death

19. The applicant claims his father was killed in January 2008 in a targeted killing. He claims his father was originally injured in an attack on his way to the mosque for prayers in late 2007.  He was taken for treatment initially to Kohat and then to Peshawar.  In January 2008, while in Peshawar for follow up treatments and out walking with his [Relative 2], he was shot by gunmen from a passing car and killed. In support of this claim the applicant provided an FIR, post mortem report and a death certificate.  The Tribunal has also considered evidence about this matter contained in the decision of the (differently constituted) Refugee Review Tribunal relating to the application for protection made by the applicant’s brother, [Mr A].

20. Having carefully considered all of the available evidence, the Tribunal accepts that the applicant’s father is deceased, and that he was killed by gunshot in January 2008.  This is supported by the death certificate and post mortem report provided by the applicant and also evidence given by the applicant’s brother in his own protection visa application some years earlier. It is also consistent with independent information before the Tribunal, regarding the outbreak of violence in Kurram in April 2007 and again in November 2007.[1]

    [1] Chandran, S 2008, Sectarian Violence in Pakistan’s Kurram Agency, Pakistan Security Research Unit, Brief Number 40, 22 September, pp.4-6 <

21. However, the Tribunal has concerns about the applicant’s claims that the perpetrators of his father’s death were known to him or his family or known Sunni militants, because of contradictions and inconsistencies in the available evidence. The applicant acknowledged to the Tribunal that he was young at the time of his father’s death and his knowledge of the events and incident was relayed to him by his relatives. His evidence was that his father was injured on his way to the mosque in late 2007 and was taken to Kohat and then Peshawar for treatment.  He remained in Peshawar for treatment after being in hospital for one month, and was shot and killed while out walking one day with his [Relative 2] and that they went to make a report of the incident after that. In his interview with the delegate, he said his father was shot by unknown people.  The FIR he submitted however is not consistent with this account, as it indicates his [Relative 2] was with the applicant’s father together with his relative, and that they were shot at from a car containing [known] persons, who were named in the report.

22. The applicant’s brother [Mr A], in his own protection visa application gave different accounts of the same incident.  His evidence was internally inconsistent between what he told the Department at interview (that his father was out walking with his [Relative 2] when he was shot, and the family made a FIR to the police indicating they believed [number] or [number] Sunni people were responsible) and what he told the (differently constituted) Tribunal (that his father was alone when he was shot and that the FIR provided which indicated that his [Relative 2] and other relatives witnessed the incident was not true). Even after the inconsistency was put to him, he maintained to the (differently constituted) Tribunal that his father was alone and unknown persons were responsible for his father’s death and that the FIR contained incorrect information. The applicant’s brother’s evidence was also different to the account given by the applicant to this Tribunal in that he said his father was closing his [business] when he was originally injured in the attack in [Town 1] and that it occurred in April 2007, whereas the applicant has said his father was on his way to the mosque in [Town 1] and that he was originally injured in late 2007.

23. The Tribunal put the above inconsistencies to the applicant in a s424A letter and explained that the inconsistencies may lead the Tribunal to not accept his account of this incident or the FIR document as credible or reliable evidence that his father’s death was a targeted killing and that he was killed by the Sunni people named in the FIR or by Sunni terrorists.  

24. The Tribunal has considered the response provided by the applicant and the Statutory Declaration from his brother, [Mr A]. [Mr A] explained he was suffering from post traumatic stress disorder, depression and anxiety at the time of his own application for protection and this affected his ability to accurately recall details, and stated that therefore the applicant’s account of the incident is the correct one.  He confirmed that his [Relative 2] was not present when their father was killed but he now maintains that all the other information in the FIR is correct.  Submissions for the applicant also clarified that the applicant understood his [Relative 2]  was not present when his father was killed but that he provided evidence to the police together with his relative [name], and that the reference to him being present may be an error on the part of the police.  No further submissions were made addressing the accuracy of the information about the named persons in the report.  

25. Having carefully considered the evidence now before it, the Tribunal remains troubled by the inconsistencies and contradictions between the applicant’s account of events and the account given by his brother to the (differently constituted) Tribunal and the explanations given about the FIR and its content. Given the inconsistencies and contradictions in the accounts provided of the incident and how the FIR came to be made, the Tribunal does not accept that the FIR, if it is genuine at all[2], is an accurate record of the incident. Given [Mr A]’s earlier admission that the persons who shot his father were unknown, the applicant’s own evidence to this effect in the present application and the rejection of the FIR as evidence to the contrary, the Tribunal does not accept that the applicant’s father was killed by known persons.

    [2] Independent information before the Tribunal indicates that document fraud is endemic in Pakistan, and that it is relatively simple to fraudulently produce police issued FIRs using existing FIR book numbers: DFAT Country Information Report Pakistan 15 January 2016; Department of Foreign Affairs and Trade  2008, RRT Information Request: PAK32903- First Information Reports/ First Incident Reports(FIRs), 25 February <CISNET Pakistan CX194747>  see also Immigration and Refugee Board of Canada, Pakistan: Fraudulent documents other than identity documents, including methods of obtaining fraudulent documents and assessing the credibility of fraudulent documents; FirstInformation Reports (FIRs), newspaper articles, academic qualifications, and land ownership titles, 13 December2011, PAK103917.E, available at: >

    The Tribunal has also considered the evidence of the newspaper article submitted by the applicant to the delegate referring to his father’s death and the failure to arrest anyone for this incident since then. The applicant explained the context in which this article came to be produced in his evidence to the Tribunal. The Tribunal is prepared to accept his explanation that his brother arranged for the article to be produced, and given that it was produced at the request of the applicant’s brother the Tribunal gives it little weight as evidence of the facts it refers to.

    Threats against his brother

26. The applicant has also made reference in his application to threats received by his brother, [Mr A], in Pakistan. The information he has provided about this in his application is brief.  In his written statement he said his mother told him that his [brother] had received threatening letters and, together with what happened to his father, she did not want him to remain in Pakistan.  In his evidence to the delegate he referred to his brother getting threats in Peshawar and then again when he moved to Islamabad.

1. The Tribunal has also considered evidence about this matter contained in the decision of the (differently constituted) Refugee Review Tribunal relating to the application for protection made by the applicant’s brother, [Mr A]. It notes that [Mr A] provided inconsistent information about receiving threats in his application. He did not refer at all to receiving any threats in his application form.  In his interview with the delegate of the department he mentioned receiving messages telling him to leave this place because he is Shia when he was in Peshawar and later in Rawalpindi. He said he received one such message when he was in Peshawar and one message in Rawalpindi. He said the messages were received by all the [Town 1] students and that they were pushed under his door. In a statutory declaration provided to the (differently constituted) Tribunal he stated he had received a threatening letter signed and stamped by Tehrik –e-Taliban [in] December 2007 and again [in] January 2008 in Peshawar.  At the hearing before the (differently constituted) Tribunal he confirmed that he had received these two threatening letters in Peshawar and also mentioned that he received one threatening letter in Rawalpindi [in] May 2009.  He said that the two letters in Peshawar were received by his roommate who told him that [number] men came with knives and pistols. He said the third letter in Rawalpindi was in his room when he came in.

2. The Tribunal put the above inconsistencies to the applicant in a s424A letter and explained that the inconsistencies in his  brother’s evidence in his own protection visa application about whether, how many and how he received the threatening letters may lead the Tribunal to not accept that his brother received threatening letters from Tehrik –e-Taliban in Pakistan. In submissions made in response to this invitation, the applicant’s representative submitted that as he was not personally involved in receiving the letters he was unable to comment on it.  However, it was also submitted that the applicant is aware that during this period his brother was suffering from post traumatic stress disorder, anxiety, and depression, and reference is made to academic writing in relation to an individual’s ability to recall, especially when they are suffering from prior trauma. The Tribunal observes that [Mr A] provided no response or comment to these inconsistencies in the Statutory Declaration he provided with the applicant’s response. 

3. Having carefully considered the information before it relating to this claim, the Tribunal has significant doubts about the reliability and veracity of his brother’s claims to have received threatening letters.  However, even if the Tribunal were to give the applicant the benefit of its considerable doubts about this matter, and accept that it is possible that his brother, while studying in Peshawar and Rawalpindi between 2007 and 2009, received threatening letters, it finds, on his brother’s own evidence, that the messages were not targeted to him specifically, but received by all [Town 1] students in this period.  There is some independent evidence of threats faced by students from [Town 1] which lends support to this claim.[3]

   Claim of being kidnapped in April 2012

   [3] [Information deleted].

4. The applicant claims he was kidnapped, held for one week in a cave where he was beaten and threatened with death, before he managed to escape. He referred to his kidnapping at his original entry interview and in his written claims submitted with his application for Protection.  He also gave an account to the delegate at interview and to the Tribunal at the hearing. While his evidence given on each of these occasions has been, in some respects consistent, there are some significant differences in the accounts. The Tribunal also observes that he has consistently given very little detail about this incident.  On each occasion he claims not to know who took him, where they took him, or why he was taken.  In his account of the incident to the Tribunal he referred to the people as wearing long clothes, turbans and long beards. When pressed for more detail, he told the Tribunal he believed that they may be from Lakshar-e-Jhangvi or Lashkar –e-Taiba or Sipah e-Sahaba or such groups because he believes the Sunni community given refuge to them in [Town 1]. The Tribunal observes that in his entry interview, the applicant described his abductors only as ‘terrorist people’.  To the delegate he referred to them as ‘Taliban’. His description to the Tribunal of the place he was held for a period of one week was that it was a dark cave and he could not see hardly anything. He claims no one spoke to him during the period and he did not know why they took him, and for what purpose other than that they threatened to kill him.  The applicant provided no other evidence to support his claim of this incident. He told the delegate his abduction was not reported to the authorities because they had done nothing to pursue the people who killed his father.   

5. On the available evidence, the Tribunal has concerns about the veracity of the applicant’s claim to have been kidnapped, held for one week and beaten and threatened with death. His account of this incident, which occurred relatively close in time to his departure from Pakistan, is vague and lacking in convincing detail. He has added detail about who his alleged abductors were as the application has progressed, starting off at the entry interview with saying they were ‘terrorists’ and then referring to them as ‘Taliban’ before the Department, and as members of other extremist/militant groups in his evidence to the Tribunal.  However, when pressed for more descriptive detail about the incident by the delegate and the Tribunal, he has been sparse in providing any additional detail.  Given this was the incident which he claims led him to flee the country, and it occurred relatively close in time to his departure, the Tribunal would expect him to be able to recount the incident, if it occurred, in more descriptive detail. The Tribunal has taken into consideration the applicant’s relatively young age at the time of the incident, and the medical report dated [in] October 2013 indicating a post traumatic stress disorder diagnosis. It has also considered submissions made on his behalf regarding difficulties experienced by applicants when asked to recall traumatic incidents, and the possibility that there may have been interpretation issues given the applicant has had different interpreters at each interview he has undertaken.

6. Taking into account that the applicant has given consistent, though limited evidence about this matter, and the Tribunal has not otherwise found him to be specifically lacking in credibility in relation to evidence provided by him in this application, even if the Tribunal were to give him the benefit of its significant doubts regarding whether he was kidnapped, on his own evidence, being the only evidence before the Tribunal on this matter, the applicant did not know specifically who his abductors were, or why they had taken him.  Given that his abductors did not disclose who they were or why they had taken him, and his mother and siblings have been able to continue living at the same address since that time, the Tribunal does not accept that the abduction was targeted at the applicant personally and it is not satisfied that he faces a real risk of serious or significant harm in the reasonably foreseeable future because of this particular incident.

   Claims his brother [name] was injured

7. In his evidence before the Tribunal the applicant, when asked if there were any other incidents affecting the family, claimed his [other] brother [was] injured in a small rocket blast that hit his house in 2011. He did not provide any further detail about this incident. The Tribunal has some concerns about the truthfulness of this claim, given that he had not mentioned it in his written application or at interviews with the Department and the sparse details he had of the incident, given it occurred when he was still in Pakistan. The Tribunal has considered the submissions made in respect of this matter by the applicant’s representative, and independent information about conditions and circumstances in the applicant’s home area in this period, and on this basis it is prepared to give him the benefit of the doubt and accept that it is possible his brother was injured as a result of a rocket that hit his house in 2011.  However, nothing in the evidence before the Tribunal about this matter suggests the attack was targeted at his brother or family specifically.    

   Whether the applicant has a well-founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention

8. In summary, of the claims made by the applicant in the present application, the Tribunal has accepted that he is a Turi Shi’a, and that his father was injured in an attack on a mosque in 2007 and later killed by gunshot in Peshawar in January 2008, that his [brother] may have been a recipient of general threats made against students of Shia background from [Town 1] in 2007 and/or 2008, another  brother may have been injured by a rocket that randomly hit his house in 2011 and that he may have been kidnapped by unknown persons for unknown reasons in 2012. On the basis of this profile and background, the Tribunal has considered, in light of independent country information about the security situation in Kurram Agency, whether or not the applicant faces a real chance of serious harm from the Taliban or other extremists on return to his home area because of his Shia religion and/or imputed political opinion and/or membership of a particular social group.

9. The threat which the Taliban and others pose to Shia Muslims in the Kurram Agency is well-documented.  Country information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban[4], and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban (primarily Turis).  Nonetheless, the most recent DFAT advice in relation to Shias in Pakistan appears to indicate that the security situation in Kurram Agency has improved. DFAT states in this report that:

   [4] DFAT Thematic Report - Shias in Pakistan (14 April 2015), paragraph 3.1, DFAT Thematic Report - Shias in Pakistan (15 January 2016), paragraph 3.1, 4.2

   ·According to the FATA Research Centre (‘FRC’), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015. FRC data indicates there were 14 security incidents in Kurram Agency from January-June 2015, mostly in lower Kurram. Most of these were IED and ambush attacks against security forces around Shabak and Thal, although there was also a failed suicide IED attack on a football match in Alizai on 6 May 2015.

   ·On 13 December 2015 an IED attack at a market in Parachinar killed 25 people and injured 62 others. There were conflicting media reports as to the perpetrators and motivations for the attack, with some suggesting the attack was motivated by the militants’ desire to ‘punish’ Pakistani Shias for participating in Syria’s civil war, and others characterising the attack as an attempt to contest government control following the Pakistani military’s 12 December 2015 announcement that Operation Zarb-e-Azb has almost eliminated the insurgent presence in the Shawal Valley.

   ·Sources have told DFAT that Turi Shias have travelled to Syria to participate in the country’s civil war and that militants, including those associated with the Haqqani Network, have relocated from North Waziristan and Khyber Agency into Orakzai and central Kurram and these groups are possibly targeting security forces as a first step towards establishing a more permanent presence in these areas.

   ·While the 2013 ‘peace accord’ between Shia Turis and Sunni Bangash remains in place, Turi Shias are reportedly concerned about the movement of Haqqani Network militants into Kurram Agency because of their ability to create rifts between Bangash Sunnis and Turi Shias.

   ·DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015.

   ·Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.

   ·More than 3,700 families returned to their places of origin in [2014]. This represents approximately 25 per cent of those formerly displaced - most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October – November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.

   ·FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.

   • DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb.
   • DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.[5]

   [5] DFAT Thematic Report Shias in Pakistan, 15 January 2016 at 4.31 – 4.36

10. The Tribunal has considered DFAT’s recent advice and also information contained in the representative’s written submissions.  Information from the South Asian Terrorism Portal, Pakistan Assessment 2015, stated that FATA retained the distinction of being the most violent region with the highest fatalities in 2014.[6]  Although the SATP Assessment for 2016 indicates that terror related fatalities have sustained a declining trend since 2009, with all provinces including FATA, recording declines, the transient aberration in 2014 is noted.[7]  The Tribunal also notes the reference by DFAT to the attack in Parachinar on 13 December 2015 [8] in which at least 22 people were killed and dozens injured in a blast at a used clothes market in Parachinar and that it attests to the volatility and insecurity in the region.

    [6] CXBD6A0DE14381: "Pakistan Assessment 2015", South Asia Terrorism Portal, 09 October 2015, (Opens in a new window)

    [7] "Pakistan Assessment 2016", South Asia Terrorism Portal,

    [8] ‘At Least 22 Dead in Parachinar Clothes Market’, 2015 Dawn 14 December 2015 >

    Further, the Tribunal notes DFAT’s April 2015 report, despite observing a noticeable improvement in the security situation in FATA from around 2014, concluded

    Overall, DFAT assesses that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas. However, the situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services. [9]

    [9] DFAT Thematic Report Shias in Pakistan, 14 April 2015 at 4.37

11. In their 2016 report the conclusion is revised to a low level of generalised violence in Kurram and Orakzai Agencies, and a low level of sectarian violence overall in the FATA despite references to a number of significant incidents through 2015.  However, DFAT also qualify their assessment by stating that the level of generalised violence varies throughout the FATA and acknowledging some vulnerability in the government’s security measures[10], as evidenced by the December 2015 attack in a market place in Parachinar, which killed at least 25 people and over 70 injured.[11] 

    [10] DFAT Thematic Report, Shias in Pakistan, 15 January 2016 at 4.36

    [11] Mehdi Hussain, ‘Burying their dead: Parachinar blast victims laid to rest’, The Express Tribune (Pakistan), 15 December 2015, CXBD6A0DE16980.

12. The Tribunal has carefully considered the above independent country information about the security situation in Kurram Agency, including DFAT’s recent advice and the information contained in the representative’s written submissions.  While it notes that DFAT record a noticeable improvement in the security situation in FATA from around 2014, which appears to have led to their most recent conclusion that there is a low level of generalised violence in Kurram and Orakzai Agencies, and a low level of sectarian violence overall in the FATA, the Tribunal also notes that this is qualified by DFAT stating that the level of generalised violence varies throughout the FATA and their acknowledgement of vulnerability in the government’s security measures as evidenced by the December 2015 attack in the market place in Parachinar.[12] In the present case, the Tribunal considers that a cautious approach should be adopted in assessing the risk of harm the applicant faces upon return on the basis of being a Turi Shia and on the basis of its findings above relating to his particular profile and background, it is satisfied he faces a real chance, in the sense that it is not one which is remote or far-fetched, of suffering serious harm in the reasonably foreseeable future from militant or extremists groups on the basis of his ethnicity and religion in the event he returned to [Town 1]. 

    [12] DFAT Thematic Report, Shias in Pakistan, 15 January 2016 at 4.33, 4.36

13. Accordingly the Tribunal finds that the applicant faces a real chance of serious harm at the hands of the Taliban or other extremists as a result of his Shia religious identity and/or imputed political opinion if he returns to his home area of Kurram Agency now or in the reasonably foreseeable future.

    Availability of state protection in Kurram Agency

14. The harm that the applicant fears from the Taliban and other extremist groups is from non-state agents and so the Tribunal must next consider whether the Pakistan authorities are able to provide an appropriate level of state protection.  In considering this matter, the Tribunal has taken into consideration DFAT’s assessment, in its most recent reports, of willingness by Pakistani authorities to protect Shi’a communities, however the reports also acknowledge that authorities face capacity constraints.[13] 

    [13] DFAT Thematic Reports - Shias in Pakistan 14 April 2015 and 15 January 2016, paragraphs 5.1-5.3

15. The Tribunal notes that information emerging about the new national policies dealing with terrorism and sectarianism appear to indicate that they are having significant success in reducing the number of terrorist and sectarian attacks in Pakistan.  However it also notes continued reports of attacks and fatalities in FATA in this period.  After carefully reviewing the available information the Tribunal is not satisfied yet that there is effective state protection in FATA for Turi Shia. Given the long-standing nature of the sectarian violence throughout the area, which the government is clearly struggling to contain, the Tribunal finds that the Pakistani Government does not provide the level of protection to Turi Shia that they are entitled to expect.[14] Having considered the available evidence, the Tribunal is not satisfied that the level of protection available to the applicant from the Pakistani authorities in FATA is adequate and, in the circumstances, finds the applicant’s unwillingness to seek state protection is justified.  For these reasons, the Tribunal accepts the applicant faces a well founded fear of persecution for reasons of his race and religion if he returns to his home area of [Town 1] or elsewhere in the Kurram Agency or FATA, now or in the reasonably foreseeable future.

    Relocation

    [14] MIMA v Respondents S152/2003 (2004) 222 CLR 1

1. Having found that there is a real chance the applicant will face serious harm upon his return to his home [region] the Tribunal has considered whether there is a real chance that the applicant will suffer serious harm if he relocates to another area of Pakistan such as Lahore, Rawalpindi or Islamabad where there are reportedly Turi Shia communities.[15] As the relevant law in Attachment A provides, the Tribunal must determine if there is an “appreciable risk of the occurrence of the feared persecution” throughout Pakistan, and, if not, whether it would be “reasonable”, in the sense of “practicable”, to expect the applicant to seek refuge in another part of the same country.  What is “reasonable” in this sense depends on the particular circumstances of the applicant and the impact on him of relocation.

   [15] DFAT Thematic Report - Shias in Pakistan (15 January 2016) paragraph 5.5

2. In submissions to the Tribunal dated 21 April 2015, it was argued by the applicant’s then representatives that he cannot safely relocate anywhere in Pakistan because his religion is central to his identity and that he cannot be expected to hide that identity to avoid persecution.  It was submitted that where and how he prays would readily identify him as a Shia Muslim as does his surname.  The representative argued that there was extensive country information establishing that Shias are the target of violent attacks by fundamentalist groups throughout the county and that Islamic State (IS) is also increasingly emerging as a further nascent threat against Shia Pashtuns in Pakistan, and referred to various sources of country information in support of these arguments.  The submission referred to the applicant’s relatively young age, lack of substantial work history and incomplete tertiary studies as circumstances relevant to his ability to relocate, and to country information indicating the inherent risks for Shias in the places referred to by the delegate, being Lahore, Islamabad, or Rawalpindi.

3. Further written submissions were made to the Tribunal by the applicant’s new representative in November 2015, arguing that there was nowhere safe for the applicant to relocate to in Pakistan and it was not reasonable to require him to do so. Reports of threats against Shia in Lahore, Rawalpindi, Islamabad, and Karachi were referred to. The submission also referred to the particular individual characteristics and circumstances of the applicant.  He has no familial or social supports outside of [Town 1].  He would be emotionally deprived and vulnerable without access to family support and would be compelled to return to [Town 1] to visit close family. It was pointed out that he had limited work experience and was unlikely to be able to financially support himself alone elsewhere in Pakistan. The representative relied on the applicant’s claims of being kidnapped and the threats made against his brother to argue that his family has been identified by the Taliban and therefore would remain at risk from them throughout Pakistan. The representative also referred to the applicant’s status as a Shia Pashtun as a factor which makes it unreasonable for him to relocate outside of the FATA region, given the importance of tribal ties for this group and the fact that most Shias are non-Pashtun.

4. At the hearing when asked why he cannot relocate elsewhere in Pakistan, the applicant said it was not safe for him anywhere while the Sunni people from [Town 1] have moved all over the country.  He referred to threats his brother had received when he was in Peshawar and Rawalpindi which indicated that he would also not be safe there. 

5. The Tribunal has considered the matters and circumstances referred to by the applicant and his representatives and independent information before it about conditions and circumstances in a number of alternative urban centres in Pakistan.  It takes into consideration information in DFAT reports that in general, taking Pakistan as a whole, there is a low risk of sectarian violence for Shias perpetrated by militant groups given the size of the Shia population in Pakistan (approximately 36 million) and the relatively low number of sectarian attacks, for example the Pakistan Institute of Peace Studies reported 141 incidents of sectarian violence in 2014 and a substantial reduction on the level of generalised and sectarian violence during the course of 2015.[16] DFAT noted that there are Shia communities or enclaves across Pakistan including in Karachi, Lahore, Rawalpindi, Islamabad and Peshawar.

   [16] DFAT Thematic Report - Shias in Pakistan, 14 April 2015 para 4.1, 4.2  DFAT Thematic Report - Shias in Pakistan, 15 January 2016, para 4.1

6. Having regard to this and other information before it, the Tribunal accepts that sectarian violence across Pakistan may be relatively low considering the size of the Shia population, however it also accepts there is support in the evidence that extremist groups such as Lashkar-e-Jhangvi and the Pakistani Taliban have perpetrated targeted violence against Shias and tribal opponents in Karachi, Peshawar and in Punjab cities including Lahore, Islamabdad and Rawalpindi.[17] In 2013, it was reported that [details deleted].[18] A Turi hotel in Peshawar has been targeted for attack, including in February 2014 when a car bomb killed 9 Turis from Parachinar.[19] Persons displaced from Kurram living in Peshawar also reportedly face discrimination, harassment and police extortion because of their association with the ongoing insurgency which limits their income opportunities.[20]  Another report states that Turis in Islamabad have received threatening calls and letters, have had to move businesses and hire private security guards to protect their families.[21]  The Tribunal also accepts that independent information indicates that rapid population growth caused by internal displacement has led to increases in the cost of living in urban centres such as Peshawar.

   [17] Rafiq, A 2014, Sunni Deobandi-Shi’I Sectarian Violence in Pakistan: Explaining the Resurgence since 2007, Middle East Institute, December, p.75 < , see also CXBD6A0DE11938: "Terror continues to haunt Kurram people in capital", Nation, The (Pakistan), 15 June 2015, (Opens in a new window)

   [18] [Information deleted].

   [19] Ahmad, R 2014, ‘Sectarian motivated attack: Bomber targets diners in Peshawar restaurant’, The Express Tribune, 5 February

   [20] Mosel, I and Jackson, A 2013, Sanctuary in the City? Urban displacement and vulnerability in Peshawar, Pakistan, Humanitarian Policy Group, May

   [21] Khattak I, ‘Spectre of sectarianism still chasing Kurram residents’, The Nation, 28 September 2014

7. The Tribunal accepts that the applicant’s identity documents identify him by tribe and place of origin and that he can be identified as a Shia Muslim from [Town 1].  It accepts that he is [age] years of age, and that he has no familial or social supports outside of [Town 1] and that he has never lived in any other place outside of [Town 1] in Pakistan.  Although the Tribunal accepts that the independent information indicates that there are Shia communities in various parts of Pakistan, DFAT reports also recognise that relocation generally occurs with ease and frequency because of family and community networks, of which the applicant has none outside of [Town 1]. The Tribunal also accepts the applicant has limited employment experience or education qualifications and this, together with his young age and lack of family support, would make him particularly vulnerable where he to be required to relocate within Pakistan. 

8. Having considered all of the above, given the applicant’s particular circumstances the Tribunal finds that it is not reasonable, in the sense of practicable, for him to relocate to another part of Pakistan where he would not face an appreciable risk of the occurrence of the feared persecution.

   Conclusion

9. For the above reasons, the Tribunal is satisfied that the applicant has a well-founded fear of being persecuted by non-state actors, from which the state would not be able to protect him, if he returned to Pakistan now or in the foreseeable future, and that, in the circumstances, it would not be safe or reasonable for him to relocate to another part of the country.  The Tribunal considers that the persecution which he is at risk of suffering involves ‘serious harm’ as required by s.91R(1)(b) of the Act, in that it involves significant physical harassment or ill-treatment.  The Tribunal finds that his race and religion are the essential and significant reasons for his fear of persecution as required by s.91R(1)(a).  The Tribunal is satisfied that the persecution he is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason.  

10. Accordingly, for all of the above reasons, the Tribunal finds that the applicant has a well-founded fear of Convention-related persecution if he returns to Pakistan now or in the foreseeable future. The Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations and that he satisfies the criterion set out in s.36(2)(a) for a Protection visa.

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

11. 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.

    Refugee criterion

12. 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).

13. 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.

14. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

15. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

16. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

17. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

18. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

19. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

20. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    Relocation

21. 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: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. 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. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her 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: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

22. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

23. 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’).

24. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

25. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

26. 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.