1403217 (Refugee)

[2015] AATA 3236

1403217 (Refugee) [2015] AATA 3236 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1403217

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Michelle Grau

DATE:24 July 2015

PLACE OF DECISION:  Brisbane

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 24 July 2015 at 2:30pm

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] February 2014. He applied for review on 20 February 2014 and it was constituted to this tribunal on 15 April 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. The applicant appeared before the Tribunal on 7 July 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 by telephone.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. In summary, the applicant, a Turi, Shia Pashtun from Parachinar claimed he feared kidnap and ransom from the Taliban. His brother was kidnapped by the Taliban in 2008 when returning home from [another country] and released after payment of a ransom. In February 2008 he was injured in a bomb blast. The applicant claimed in January 2012 when visiting Peshawar people came to his [residence] asking for him and he believes they were Taliban. So he went to Islamabad for 5 days and returned home. In April 2012 he fled Pakistan. He fears he will be kidnapped by the Taliban because he comes from a wealthy family in the Parachinar area and is also a Shia from Parachinar and regardless of where he moves he will be targeted by the Taliban because he is Shia from a wealthy family in Parachinar.

5. At hearing the applicant added he fears harm because of his ethnicity, belief, religion and appearance, accent and a Turi Shia from Parachinar. He claimed he is different from others as he is well known in his home town and will be identified by Sunnis from his home area who have relocated to other areas in Pakistan.  He also claimed he is a totally different person now and adopted the Australian way of life and he is from a fundamentalist Turi community from Parachinar and has changed his way of life and appearance and will suffer persecution from his home area.

6. He claimed it is not safe to relocate anywhere in Pakistan because he will be targeted as a Shia, Turi from Parachinar and he is different as he is well known and wealthy. No one would rent a house to him, he could not get a job and his children would not be educated.  He has [a number of] children aged [age range] years old and a wife. His children often are not able to attend school due to violence. His wife remains indoors and is not able to leave the home for her safety. They have some farm land which they draw an income and also provides some money from his work in Australia at [a company]. In Pakistan he was also a [occupation] and sold [products] to make a profit and had some savings.

7. At hearing the agent submitted the applicant was a national of Pakistan and not of a city or Lahore so it is unreasonable for him to relocate to Lahore. It would be difficult for him to relocate to find a new job in a new town with a family.

8. The issues for determination are:

   a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Pakistan?

   b.Are there substantial grounds for believing there is a real risk the applicant?

   FINDINGS AND REASONS

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

   2008 Brother kidnap and bomb blast

10. The applicant claimed his brother had been kidnapped (and released upon payment of ransom) in 2008 by the Taliban; the applicant had been harmed in bomb blast in 2008. The tribunal accepts these claims because the applicant provided generally consistent account and they are consistent with country information about the road being blocked, kidnappings by the Taliban in that area at the time and bomb blasts. The tribunal finds however these were random events and does not accept that the applicant was specifically targeted.

    Taliban threats and looking for applicant 2012

11. The applicant also claimed the Taliban telephoned him a few times in the first week after his brother’s kidnap and release but this stopped after he changed his mobile phone number. He also claimed in January 2012 the Taliban was looking for him at a [residence] he was staying at in Peshawar. At hearing he added that the Taliban were looking for him and he was in hiding and restricted his movements.

12. The tribunal accepts on the benefit of the doubt the applicant received some calls on his phone after his brother was released but it does not accept that the Taliban continued to look for him or were interested in kidnapping him. His statement of claims clearly set out that he received the calls for a week after his brother was released but when he changed the phone number he stopped receiving them. He made no mention of the Taliban continuing to look for him or any other threats until the January 2012 claim.

13. The tribunal does not accept the Taliban were targeting the applicant or looking for him in January 2012 as his account lacked credibility in a number of respects and the applicant’s evidence was evasive and changed in response to tribunal concerns. For instance, the applicant’s evidence about how often and the reasons he went to Parachinar changed.  At first he claimed he went often and when asked how often he said it was not often but only when he needed something. When the tribunal asked for specifics about approximately how many times he travelled there between 2008 and 2012 or what would be the reasons for his travel there, his answers were evasive. For instance the applicant said many times and described the dangers and repeated he only went when there was a high need or something important, like medicine.

14. However, the applicant claimed he went to Peshawar in January 2012 to check on his life insurance. The tribunal considers the applicant’s account of the reason why he went to Peshawar in 2012 lacked credibility and when tribunal concerns were raised his account lacked detail and was vague. The tribunal does not accept that going to check on his life insurance, which had been in place since 2004, was something of high importance or high need. Further when asked for details of what he needed to check the applicant’s account was vague, saying he was checking on receipt and to find out. When the tribunal expressed doubt that he would travel to Peshawar to check on his life insurance the applicant changed tack saying it was his only chance to go as the road was open and fine.  

15. Further, the tribunal considers that the Taliban would just happen to be looking for him when he happened to be in Peshawar lacks credibility. And that they would know what [residence] he was in and that he would just happen not to be at the [residence] at the time is further lacking in credibility. Even more so the tribunal expressed doubts the Taliban were looking for him in Peshawar in 2012 given the last contact with the Taliban was in 2008 after his brother’s kidnapping.

16. In response to tribunal concerns the applicant claimed the he had been hiding himself and they were looking for him since 2008. The tribunal does not accept the Taliban were looking for the applicant since 2008 or that he was in hiding or restricted his movements to hide from them. The applicant had continued to live and work in the same area. He claimed he was well known in the area. He [had an occupation], had a farm and sold [products]. On his own evidence he travelled to Peshawar many times. The tribunal finds he was not hiding or restricting his movements. The applicant added he was trying to do his [occupation] and farm but due to ongoing clashes he was not able to [conduct this occupation] or work on the farm. However, the applicant made no claims that the Taliban were continuing to look for him between 2008 and 2012 in his statement of claims.  The tribunal considers the applicant was adding to his claims in response to tribunal concerns. The tribunal does not accept the Taliban were looking for the applicant in January 2012 or prior to that or made threats to him. The tribunal finds the applicant embellished his claims in that regard.

    Harm from community or other Sunnis from his hometown

17. At hearing the applicant added new claims that he feared harm from other Sunnis originally from his hometown who have relocated to other cities, like Lahore. The tribunal does not accept this claim as the applicant informed he feared harm because of community clashes between Sunni and Shias in his home area but he confirmed he was never involved in any such clashes and would not be so in the future. Further, the applicant had not claimed fear of harm from Sunnis or the community previously.  The tribunal considers the applicant was adding to his claims as he went along.

18. He also added at the end of the hearing that he feared harm from his own community as he had adopted the Australian/western way or appearance. However the tribunal considers the applicant added this claim at the end of the hearing to embellish his claims. Based on the country information, the tribunal does not accept that returning from Australia, adopting a western appearance puts him at risk of harm.[1]

    Future harm

    [1] DFAT country report 3.62 – 3.63

19. 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.

20. The applicant has made a number of claims for well-founded fear of persecution based upon his being from his home region, Parachinar in Kurram Agency, a Turi and a Shia, appearance, accent, ethnicity, from a wealthy family, or well known in his home area, being a changed person having spent time in Australia, as well as particular social groups and implied political opinions arising from those characteristics that would make him a target of harm from the Taliban or other Sunni groups or his community. Regardless whether his claims are considered in terms of his ethnicity, imputed political opinion or membership of a particular social group, the Tribunal considers the issues under consideration are substantially the same. Related but also independent of those issues is his claims regarding his Shia religion.

21. The applicant has provided consistent information regarding his race and religion. The applicant’s identity documents consistently detail his address in his hometown. The Tribunal accepts the applicant is a Pashtun, a Turi and a Shia from Parachinar.

22. 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.

23. There has been a high level of insecurity in Kurram Agency. Sectarian violence erupted in November 2007 after a grenade was thrown at a Sunni mosque in Parachinar during Friday prayers.[2] Militant groups such as the TTP, Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) have been engaged in the conflict.[3] Between April 2007 and early 2011, around 2000 to 3000 people were killed and over 3500 wounded[4] and much of Kurram’s health, education and agriculture infrastructure was severely damaged.[5] 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.[6] In 2008, the TTP offered a peace deal with the Shia Turi if the Turi allowed them free passage through Upper Kurram to Afghanistan, however, the Turi refused.[7]

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

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

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

    [5] 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

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

    [7] Mahsud, M.K. 2010, The Battle for Pakistan: Militancy and Conflict in Kurram, Human Security Report Project website, April, p.4

24. 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. [8] 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.[9] 

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

    [9] 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

25. Although sectarian violence is reported to have declined in Kurram,[10] attacks on Shias continued into at least 2014. The South Asian Terrorist Portal (“SATP”) contains information of multiple fatalities in the FATA including in the applicant’s area in 2014[11] and two bomb blasts in the applicant’s Parachinar in 2014 and many suicide attacks in Parachinar in 2012 and 2013 [12] The Tribunal accepts that the Taliban and associated groups have waged a campaign of violence against Shias throughout Pakistan, and in particular, in the home region of the applicant.[13] 

    [10] United States Institute of Peace Mapping Conflict Trends in Pakistan February 2014

    [11] [Source deleted].

    [12] [Source deleted].

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

The DFAT Shia report assesses that Shias in there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas. Ongoing counter insurgency operations by the Pakistan security services against militants in the FATA have resulted in a high level of generalised violence and widespread displacement of communities and the situation remains volatile.[15]

[15] DFAT Shia report 4.34 – 4.37

The Tribunal is satisfied that the conflict in Kurram Agency is ongoing. Notwithstanding some improvement, there is still a militant presence and insecurity in Kurram, including around Parachinar, and Shia Turi are still being targeted because of their religion and political opinion of opposition to the Taliban.

On the basis of the considerable evidence on the conflict in the applicant’s home region, the Tribunal accepts the overlapping reasons of race (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.

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.

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.

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 as a Turi 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

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.

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

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

1. 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

2. 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] [Source deleted].

3. 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] DFAT also noted that there is still a high level of generalised violence in FATA due to ongoing counter-insurgency operations against militants and that the situation remains volatile.[24]

   [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, 2015, DFAT Thematic Report - Shias in Pakistan, 14 April

4. The tribunal accepts there has been some improvement in the security situation in FATA and the security forces are engaged in counter-insurgency operations against the militants in Kurram Agency. However, the long standing and serious level of sectarian violence compounded by the presence of anti-Shia militant groups targeting the Turi tribe 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 Turi race if he returns to his hometown, Parachinar, in his home region, now or in the reasonably foreseeable.

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

   Relocation

6. 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: 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.

7. 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.[25]

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

8. The applicant claimed he cannot safely relocate anywhere in Pakistan because he is identifiable as a Turi Shia from his name, ID card, appearance, accent and religious practices. 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.[26] While the applicant claimed his accent is different as well, in the absence of country information confirming a difference the tribunal is not satisfied the applicant is distinguishable by his accent.  However, the Tribunal accepts that the applicant’s identity documents identify him by name, tribe and place of origin and that he can be identified as a Shia Muslim of the Turi tribe from Parachinar.  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 [a source] as a common Shia name. Further he would be identifiable in attending Shia mosques.

   [26] DFAT Shia report 3.6

9. The Tribunal accepts that as a Turi Shia from his home region, the applicant will be imputed with a political opinion that is opposed to the Taliban and other Sunni extremists. 

10. 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. [27]  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.[28]

    [27] 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 Tribunal noted there is a sizeable Shia population in Lahore [29] and state protection is more available and Taliban or other militant Sunni activities are less prevalent in Lahore. 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. [30] 

[29] See: DFAT Shia Report; Tripathi A 2013, Shias: Sectarian Targets, South Asia Intelligence Review, Vol 12, no.4 29 July Folios 128-124

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. 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.[31] 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.[32]

[31] DFAT Shia report 4.4.5

[32] DFAT Shia repor 4.21 – 4.22

The applicant claimed he will not be safe anywhere in Pakistan. He claimed he was different and at risk of harm because he was well known from his home region and other Sunnis who have relocated from that region to urban areas may target him because of prior community clashes. The applicant however confirmed he had not been involved in any community clashes previously or anything like that. The tribunal does not accept the applicant’s claims that he is well known and will be targeted by former Sunni residents from his home town as the tribunal considers the applicant was adding to his claims in response to tribunal suggestion he could relocate. Further, the applicant’s claims were about fear of harm and he had not mentioned anything about fear of harm from local or former Sunni residents from his home area. Further, the Tribunal was unable to locate reports of Turi being targeted for harm in Lahore. The tribunal does not accept he faces harm or would be targeted in Lahore because he is from Parachinar or by Sunnis who have relocated.

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 the militant groups such as LeJ have strongholds in the Punjab. Lahore is not listed as such a stronghold.

The Tribunal accepts that the ongoing sectarian attacks in Lahore indicate that there is some level of risk of harm to Shias in Lahore, however the significant number of Shias living in Lahore together with the sporadic nature of those attacks 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 is remote, and therefore not real.

The is satisfied the 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 whether there it is not reasonable for the applicant to relocate to Lahore.

The applicant claimed he could not find a job and no one would rent to him and he could not find education for his [children] and it would not be safe for them and he has no connections and anyone to rely on for help in Lahore.

The tribunal noted the applicant was relatively well off and resourceful as he owned a farm, worked as [an occupation] and sold [products] from time to time for profit.  Further, the applicant speaks Urdu as well as Pashto. 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.[33]

[33] DFAT country report 5.16

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 the fact that he is a Turi, Pashtun, Shia from his home region 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.[34]

[34] DFAT Shia report 3.9-3.10

However the tribunal is mindful the applicant will face more difficulty relocating his family of [dependent children] aged [age range] years old and his wife as the difficulties in finding employment, education and accommodation for his large family will be exacerbated.  The tribunal considers the applicant’s circumstances, having a large family to relocate, are very different to the difficulties of relocation for a single male. The applicant would need to find employment capable of supporting the family and accommodation suitable for the family. He would also need to find schooling for the children and have to settle the family in a new city with no connections or networks to assist. The children are also young  and may face language and adjustment difficulties in a new environment, in which the applicant will need to assist. These personal circumstances persuade the tribunal on balance, that in these particular circumstances it is not reasonable for the applicant to relocate to Lahore or anywhere else in Pakistan to avoid Convention based persecution.

The Tribunal is satisfied the applicant has a well-founded fear of persecution due to the overlapping Convention reasons of his race and religion from the Taliban or other Sunni militants, now or in the reasonable foreseeable future if he returns to Pakistan.

CONCLUSIONS

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

Having concluded that the applicant meets the refugee criterion in s.36(2)(a), it follows the there is no need to for the Tribunal to consider the complementary protection obligations under s.36(2)(aa).

DECISION

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

Michelle Grau
Member

RELEVANT LAW - ATTACMENT 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. There are at present two such relevant country information assessments published for Pakistan: DFAT Country Information Report Pakistan (14 April 2015) (“the DFAT report”) and DFAT Thematic Report Shias in Pakistan (14 April 2015)(“the DFAT Shia report”). The Tribunal has had regard to both reports and discussed the relevant content of the reports with the applicant at the hearing