1405829 (Refugee)

[2016] AATA 3431

1405829 (Refugee) [2016] AATA 3431 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1405829

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:18 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2016 at 6:06pm

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, applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] March 2014.

3.    The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

4.    The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

RELEVANT LAW

5. 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

6. 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).

7.    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.

8.    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.

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

10.    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.

11.    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.

12.    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.

13.    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.

14.    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.

15.    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

16. 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’).

17.    ‘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.

18.    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

1. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The applicant claims to be a citizen of Pakistan who was born on [date] in [Village 1], Parachinar City, Kurram Agency, Pakistan. He lived in [Village 1], Parachinar, in Upper Kurram Agency from [year] to [June] 2012. He completed primary and high school and is fluent in Pashtu and Urdu. The applicant described his occupation before coming to Australia as [driver]. From 1993 to 2004 he worked as a self-employed [occupation], 2004 to 2007 a self-employed [driver], 2007 to November 2011 a self-employed [occupation] and November 2011to March 2012 a self-employed [driver]. He departed Pakistan legally [in] June 2012. His wife, [children], father, step-mother[and siblings] are residing in Pakistan.

3. The applicant presented his claims in his protection visa application [in] January 2013 (folios 35 to 68 of Department [File]), a Departmental interview he attended [in] November 2013 (folio 137 of Department [File]), in submissions from his adviser received by the Department and the Tribunal and at his Tribunal hearing on 17 November 2015.  The following is the statutory declaration made by the applicant attached to his protection visa application:

   1.I am a Pakistani citizen born and raised in the Upper Kurram Agency, Kurram Agency.

   2.I have lived my entire life in [Village 1], a village in Parachinar. In my village, my extended family all live close together in the village.

   3.I belong to the Bangash tribe and I am a Shi'a Muslim. I follow religious requirements such as Ramadan and attend the Mosque for religious occasions in the Shi'a Muslim calendar and other religious festivities.

   4.In 2007, the security situation in Parachinar became very bad. The Taliban looked to gain passage through Parachinar to come in and out of Afghanistan (as it is on the border). The people of the region refused and since that time the Taliban have attacked and caused trouble to the Shi'as of the region.

   5.In 2007, my [uncle]was captured by the Taliban and killed. He was travelling on the road, in the area [about] 100km from Parachinar. He was travelling home to Parachinar by bus when he was captured. He was separated from the other people on the bus because they identified him as a Shi'a. The Taliban then shot and killed him.

   6.In 2009, my [friend]was captured by the Taliban and held for three months. They demanded a ransom of one million rupees. His family paid the ransom and he was released.

   7.My job in Pakistan was as a driver of a [vehicle]. The route that I drove was from Peshawar to Parachinar and back. My job became increasingly difficult as the Taliban took control of the road.

   8.Once, in 2007 when I was driving, the [vehicle] in front of me was targeted by the Taliban. The [vehicle] was hit by a rocket. I think there were at least eight [people] who died and six people were badly injured. We were travelling as part of a convoy. The security, that was part of the convoy, returned fire at the time.

   9.In another incident, the Taliban captured about 18 Shi'as travelling on the road and cut their hands off. There was an army convoy with these people but the army personnel fled and did not protect them. The army does not care about the Shi'as and has no interest in protecting us.

   10.It became so dangerous and I was so frightened for my life that I stopped [driving]. I sold my [vehicle] and decided I would work on the farm instead.

   11.In late 2011, I moved to Peshawar because I needed to earn an income. I couldn't find enough work to support my family in my region. I bought another [vehicle] and started driving the route from Peshawar to Islamabad.

   12.I spent four months working in Peshawar [driving]. After four months (around March 2012) I was warned that I would be targeted by the Taliban if I continued to drive. The person who warned me was[name deleted], the person in charge who was coordinating the [vehicles] from Peshawar to [Islamabad]. He said that the Taliban had approached him and told him not to allow Shi'as, particularly those from Parachinar, to drive[vehicles]. He said that the Taliban would target and kill Shia's from Parachinar that were driving to Islamabad. The coordinator did not want me to drive that route any more because he was afraid for his safety and mine.

   13.I sold my[vehicle] — I could not risk my life after such a direct threat to my safety. If I was stopped by the Taliban on the road, they would know that I am Shi'a because of my name which is on my National ID card. [My name] is a well known Shi'a name. Also my address in Parachinar is on my ID card.

   14.After I sold my[vehicle], a friend introduced me to an agent to come to Australia. The agent organised my [visa] and my airline ticket.

   15.I had no choice but to flee Pakistan. There is no safety for Shi'as in Pakistan anymore. Shi'as are being targeted everywhere in Pakistan. I cannot move to another part of Pakistan and expect to be safe there.

   16.For example, if I were to attend a religious gathering in Pakistan I would be at serious risk. There are many cases of Shi'as who attend religious ceremonies and celebrations being targeted by the Taliban suicide bombers. This can happen in Islamabad or anywhere else in the country.

   17.The problems for Shi'as in Pakistan are not getting better. It is getting worse. Very recently, on 9 January, well respected Shi'a politician, Dr Riaz Hussain Shah was assassinated by the Taliban. I met Dr Riaz twice when I was in Peshawar — he ran a medical clinic there. He was a good man.

   18.On 11 January (yesterday) there were several bomb blasts in Quetta which were targeted at Shi'as. Many people died and it was so intense that even the buildings collapsed.

   19.I am married and I have [small] children.[Details deleted]. They still live in Parachinar with my extended family. I am very worried about them. There are hardly any supplies coming into Parachinar. It is a region that is almost completely blocked off to the rest of the country. You risk your life every time you try to get out. There is very little food and medicine coming in. It is very expensive because there is so much demand.

   20.It would be very difficult to relocate my family from Parachinar where they are supported by my extended family in our village. I would have difficulty finding work. [Driving] is too dangerous. Our land/farm is in Parachinar and it is how we make a living.

   21.I have been in contact with my father and my wife and children since I arrived in Australia.

   22.My father has been very unwell. He needs to go to Peshawar because he really needs medical treatment but he cannot go because it is too dangerous to travel there. Even Peshawar itself is very dangerous. They tell me that every day the security situation gets worse. There are constant reports of bomb blasts and targeting of Shias by the fundamentalists.

   23.If I return to Pakistan my life will undoubtedly be in danger from the Taliban and other militants. They would target me, primarily, because of my religion as a Shi'a Muslim. I would also be targeted because of my membership of a particular social group, namely Shi'a Muslims from the Bangash tribe of Parachinar. The Taliban believe that because I am from Parachinar that I oppose the Taliban, which is another reason why I would be targeted. The Shia's of Parachinar are known to have stood up against the Taliban.

   24.I do not believe that the Pakistan Government or the authorities in the Kurram Agency can protect me. They are not interested in protecting Shia's from the Taliban. In some areas, the authorities are simply not strong enough to protect us against the suicide bombers and the terror of the Taliban.

   25.It is for all these reasons that I believe I am a refugee and I ask the Australian Government to grant me protection.

   26.I wish to note that in my entry interview and my bridging visa, my birth date is recorded as[date]. I do not know why they recorded my birth date as this — it is actually [another date]. My protection visa application reflects my actual birth date. I have identified a number of other incorrect details in my entry interview in relation to birth dates of my family members and the spelling of their names. I believe this was incorrectly translated or recorded. I have provided the accurate details in protection visa application.

   22. The issue in this case is whether there is a real chance that, if he returns to Pakistan, the applicant will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

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

   24.    The applicant claims to be a citizen of Pakistan and provided a copy of his passport, national identity card, birth certificate and marriage certificate.  In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Pakistan and that Pakistan is his country of nationality and receiving country.

   25.    The Tribunal is satisfied on the evidence before it, that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s36(3).

   26.    The Tribunal accepts the applicant was born in [Village 1], Parachinar in Upper Kurram Agency, in FATA.  Consistent with the applicant’s evidence, the applicant’s passport and birth certificate each state that he originates from the village of “[name]”, Upper Kurram Agency.

   27.    The Tribunal also accepts that the applicant is a member of the Bangash tribe and that he is of Shia Muslim religion. The Tribunal has had regard to the documents submitted by the applicant including his birth certificate which confirms that he belongs to the Bangash tribe.

   28.       The applicant claimed that he fears if he returns to Pakistan he will be tortured because he is Shia. When asked who he believes will torture him, he stated people in general; everyone and anyone is a Talib and “they” are against “us”. In response to the Tribunal’s request to explain what he meant, the applicant stated that anyone in general can be a threat to them. They torture or kill them. A number of his cousins have been beheaded and they are not sure who is responsible.    

   29.    The Tribunal asked the applicant about any problems he experienced in Pakistan as a result of his Shia religion, or even his Bangash ethnicity. The applicant stated that during 2007, when the situation was quite bad, there was constant fear they would distinguish him and he was a driver. When asked if anything happened to him, the applicant stated that there was one instance when there were two other vehicles in front of him (he was third in line), and “they” started firing bullets on the two vehicles before him so he reversed and went back the way he came. He stated that this incident occurred [70] kilometres away from Peshawar. The applicant confirmed it was after this incident that he stopped driving.

   30.    The Tribunal accepts the applicant’s claims regarding the security situation in Parachinar in 2007. The Tribunal accepts on the basis of the independent information before it that the most sustained conflict in Kurram Agency since 2007 has been the violence between the Turis, their Shia allies and some Bangash clans and Sunni extremists groups from both Afghanistan and Pakistan. Insurgent groups have sought to use a corridor between Pakistan and Afghanistan that passes through the Upper Kurram Agency and the majority Shia population in this area, particularly centred around Parachinar and surrounding districts, denied them this route. This subsequently resulted in violent clashes beginning in April 2007 and led to the road between Peshawar and Parachinar being closed between 2007 and 2011, causing acute shortages of essential items in Parachinar, according to observers like the Human Rights Commission of Pakistan.[1] The ongoing violence in the area over the last few years through the fighting and the targeted attacked against Shias, resulted in hundreds of deaths and large-scale displacements from Kurram.

   [1] IRIN, Pakistan: Driven out of Kurram Agency by violence,

   31.       In light of this information, the Tribunal accepts the applicant’s claims regarding his fears for his safety in 2007, particularly given his employment as a driver. The Tribunal accepts the applicant’s account of the incident in which two vehicles in front of him were fired at and the applicant escaped from the area by doing a U-turn and going back the way he came. The Tribunal finds this plausible and consistent with the independent information regarding the attacks which were not only occurring within the city of Parachinar at that time, but also the Taliban’s tactic of blockading the Parachinar-Thal road which linked Parachinar to the rest of Pakistan and launching attacks on the road. The Tribunal therefore also accepts that in 2008 his [uncle] was killed when he and a number of other drivers were stopped and taken out of their vehicles and beheaded on route from Peshawar. It also accepts the applicant’s claim in his statutory declaration attached to his protection visa application, regarding the kidnapping of a friend in 2009 by the Taliban and his release after a period of three months, once his family paid a ransom.  

   32.       The Tribunal accepts that following the applicant’s near miss in the attack on the convoy of vehicles which he was a part of in 2007, the applicant gave up driving and sold his[vehicle]. The Tribunal asked the applicant if he had any particular problems or if anything happened to him after he stopped driving. The applicant stated the main problem was that they could not get out so they were “hiding” in their farms and working there as they  could not get out to any other place. The Tribunal asked the applicant if he was able to go to Parachinar. He stated sometimes he would go to Parachinar but that was dangerous as there were constant threats there as well.

   33.    The Tribunal accepts the applicant’s claims regarding the isolation that he experienced as a result of the conflict in Kurram Agency from 2007. It accepts his claim in his statutory declaration that his home region was completely blocked off to the rest of the country and that there was very little food and medicine coming in and what did was very expensive. The Tribunal notes the independent information provides that the TTP effectively cut Parachinar off from the rest of Pakistan from 2008 to 2011[2], with the closing of the main highway linking Parachinar to the rest of the country, thereby seriously affecting the livelihoods of those living in Kurram, and Shia populations in upper Kurram in particular.

   [2] Siddique, A 2014, The Pashtun Question: The Unresolved Key to the Future of Pakistan and Afghanistan, Hurst & Company, London, p,102

   34.    The applicant claimed he started driving again in late 2011 due to necessity. He claimed the only thing his family had was the farm so they needed some other financial support. The Tribunal noted that he had given this work up because it was dangerous and he was frightened for his life, and asked the applicant if there had been any change in the situation for him to go back to this particular type of work. The applicant stated because it was quite tough at home in terms of unemployment and the family asked him to do this work again even though it was a bit dangerous with snow in the area, he decided to return to driving.  The applicant’s evidence was that he purchased another vehicle with a bit of his own money and also borrowed from his cousin.

   35.    While the Tribunal finds it plausible that a person may have returned to their employment driving in order to support their family, the Tribunal does not accept the applicant resumed driving in 2011 as he claimed, given what it believes to be a significant discrepancy in his evidence regarding where he resumed working. The Tribunal notes that according to the applicant’s statutory declaration attached to his protection visa application, he claimed in late 2011 he moved to Peshawar because he needed to earn an income and could not find enough work to support his family in his region. He claimed that he spent four months working in Peshawar and after four months, around March 2012, he was warned he would be targeted by the Taliban if he continued to drive so he sold his [vehicle] as he could not risk his life after such a direct threat to his safety. However, in the hearing the applicant claimed that he had gone to Islamabad in late 2011/early 2012. He initially claimed that he spent three months in Islamabad but later in the hearing stated that he was living in Islamabad for five to six months.

   36.    The Tribunal put to the applicant the inconsistency in his evidence regarding where he was living and working in late 2011, when he allegedly resumed his employment as a driver. As the Tribunal put to the applicant, it was very clearly stated in his statutory declaration attached to his protection visa application that he moved to Peshawar and that he was working in Peshawar, driving the route between Peshawar and Islamabad. There was no mention of him residing in Islamabad. The Tribunal also noted that in his more recent statutory declaration he corrected a mistake he identified in his original statutory declaration yet he had not corrected this detail which was quite significant. The applicant claimed in response that he had mentioned from day one that in 2011 he moved to Islamabad and he was not sure if this had been taken note. While the applicant claimed in the hearing that the statutory declaration which he signed as true and correct was not read to him, as the Tribunal put to the applicant, there is an interpreter declaration attached to the statutory declaration confirming that the contents of the statutory declaration had been interpreted to the applicant. Despite the applicant’s repeated assertions that he had mentioned that he went to Islamabad in 2011 all the time so he was not sure why it was not in his original statutory declaration and for this reason he believed it had not been written, the Tribunal has taken into consideration the fact the applicant has signed the statutory declaration attached to his protection visa application, including initialling each page, the interpreter declaration attached to the applicant’s statutory declaration confirms that the statutory declaration had been interpreted to the applicant and the applicant’s subsequent amendment of other incorrect details included in his original statutory declaration such as the date when his uncle was killed but not this particular information, and does not accept the applicant’s explanation for the inconsistency in his evidence. As such, the Tribunal does not accept the applicant moved away from his home village in Upper Kurram, to either Islamabad or Peshawar in late 2011, in order to resume work as a driver in order to support his family or because he could not find enough work in his home region.

   37.    It therefore follows that the Tribunal does not accept that the applicant was warned by his employer against continuing working as a driver because of the risk to both him and the applicant if people, including the Taliban, found out he was from Parachinar and a Shia.  The Tribunal has also taken into consideration the applicant’s somewhat vague evidence in the hearing that someone had approached his employer and asked if he had any Shias working for him and his employer had said no, as compared to his claims in his statutory declaration attached to his protection visa application that the Taliban had approached this person and told him not to allow Shia’s, particularly those from Parachinar, to [drive].

   38.    Given the Tribunal finds that the applicant did not work at all as a [driver] after 2007, when he sold his [vehicle] and resumed working on the family farm,  it does not accept that on his return to Pakistan he will recommence driving as his occupation. The Tribunal does not accept the applicant’s claim that he does not know any other way of earning a living apart from being a driver given that it finds the applicant worked on his family farm for a period of some five years prior to his departure from the country. The Tribunal finds on the evidence that there is nothing to suggest that the farm is no longer operational. While the Tribunal accepts that the applicant stopped [driving] in the past, in 2007, because of the volatile situation in his home area at that time, considering the country information discussed below, the Tribunal finds that if the applicant returns to Pakistan and resumes [driving], as he had prior to 2007, he does not face a real chance of serious harm. 

   39.    As the Tribunal does not accept that the applicant was living and working in Islamabad for any period of time prior to his departure from Pakistan, it does not accept his claims in the hearing that he could not roam the streets or live normally in Islamabad or that he had to be in hiding and keep away from the public because the drivers could be recognised or because he could be identified as a Shia by the way he prayed, which was different from other Muslims.

   40.      The applicant claimed that in addition to his relative who was killed in 2008, his [uncle] had been killed in an explosion. In the applicant’s recent statutory declaration dated 5 November 2015, submitted to the Tribunal, he stated that his [uncle] was killed in 2014 from bomb explosions in the [location] in his village, which was located only about two kilometres from where his wife and children live. He stated that the Taliban was responsible for these bombings and around 65 other people were killed and 105 people were injured as a result of two bomb explosions. However, in the hearing the applicant claimed that his uncle was killed in 2013, when he was driving from his village to Parachinar and there was an explosion in Parachinar. When asked where that explosion took place in Parachinar, the applicant stated it was Parachinar School Road. The Tribunal asked the applicant when in 2013 his uncle was killed. He stated all he could remember was that it was the month of Ramadan.

   41.      When the Tribunal noted that in his statutory declaration dated 5 November 2015 he referred to an incident in 2014 in which his [uncle] was killed and clarified if only the one uncle was killed, the applicant stated that there had been a misunderstanding; it was the one uncle and it was in 2013 and not 2014. The Tribunal also put to the applicant that the circumstances of his uncle’s death in his recent statutory declaration was somewhat different to his current evidence in the hearing. It noted in his statutory declaration he claimed that his uncle was killed in a bomb explosion at a transport station in his (the applicant’s) village, however he was now claiming that his uncle was killed in a bomb explosion which occurred in Parachinar.  The applicant claimed that what he was telling the Tribunal now was correct.

   42.    The Tribunal asked the applicant to explain where the information he included in his statutory declaration came from as it noted that it was quite different to what he was currently claiming.  The applicant stated his wife told him about the incident that occurred. He stated that his wife is not literate and he went by the information she provided, but when he got the death certificate that was when he found out. As the Tribunal put to the applicant in the hearing, although it appreciates the applicant’s wife may not be literate, it does not accept that this would affect her ability to recount to the applicant the details of what happened to his uncle, including when his uncle was allegedly killed, where he was killed or the circumstances of his death. As the Tribunal noted, he claimed in his statutory declaration dated 5 November 2015 that his uncle was killed in a bomb explosion at the transport station in his village, which was only two kilometres from where his wife and children live. The Tribunal finds it implausible that the applicant’s wife would provide the applicant with these particular details if the applicant’s uncle had in fact been killed in a bomb explosion in 2013 which occurred while he was driving in Parachinar, even if she is illiterate.  

   43.    The Tribunal accepts the applicant’s claim that there were reports of the explosion that occurred in Parachinar in 2013, including as the Tribunal put to the applicant, in a comprehensive report of the South Asian Terrorism Portal which provides details of attacks on Shias dating back to 2001. While the Tribunal accepts that there was a bomb blast in Parachinar on 26 July 2013, as confirmed in the independent evidence, given the significant difference between the applicant’s evidence in his recent statutory declaration regarding his uncle’s death, as compared to his evidence in the hearing, the Tribunal does not accept that the applicant’s uncle was killed in this particular explosion or in any other incident.

   44.    In relation to the  death certificate for the applicant’s uncle purportedly issued by the “Office of the Medical Superintendent Agency HQH: Parachinar” (which was submitted at the hearing), as the Tribunal noted in the hearing, it is dated [July] 2014, almost a year after the applicant’s uncle was allegedly killed and there is no official quality to this document; anyone could have produced this document. As such, it places little weight on this document. Similarly, the death certificate verified by the elders of the area appears to have been obtained in November 2015 and is based on self-reporting and the Tribunal also places little weight on this document as evidence of the applicant’s uncle’s death in 2013. 

   45.    Following the hearing, the Tribunal received what is said to be a list of names of people who had been killed in the bomb blast in 2013, certified by the medical superintendent at the Agency Headquarters Hospital in Parachinar [in] November 2015. From appearance, what the Tribunal has received is one page of a list, which includes those names numbered from 64 to 80, and which purportedly includes the applicant’s uncle at 67. The Tribunal has doubts about the veracity of this document given that it lacks very little official quality, apart from it bearing a stamp on the Medical Superintendent of the Agency Headquarter Hospital, which the Tribunal notes could be manufactured, and has handwritten on the top of the document “AHQ: Parachinar  Bomb Blast on[date].7.2013 at Parachinar”.   As such, the Tribunal places little weight on this document as evidence that the applicant’s uncle was killed in this particular attack in Parachinar in July 2013.

   46.    The Tribunal asked the applicant if his family have experienced any problems since he left Pakistan. The applicant stated the main problem is that they are all frightened, his father is quite weak and his family members are constantly at home and cannot go out. When asked what was wrong with his father, the applicant stated that he was sick; he had [a] wound and gets lots of fevers. The Tribunal asked the applicant how long his father had been unwell for. He stated two years. The Tribunal asked the applicant if there was a particular cause of the [wound] his father has. He stated that he was not sure how it happened but his father cannot go for medical assistance to Peshawar or anywhere there. The Tribunal asked the applicant if his father had received any treatment for this illness/injury. He stated just very basic treatment in his village but the ideal treatment is in Peshawar or Islamabad. The Tribunal asked the applicant why his father could not go to Peshawar or Islamabad. He stated that he has it in his mind that it is dangerous for him to travel to either place because of his religion; people might find out what it is.

   47.    The Tribunal found  the applicant’s evidence regarding his father’s health to be somewhat vague and lacking in detail. He was unable to articulate with any clarity what illness or injury his father had or how his father had received the internal wound that he allegedly suffers from. The Tribunal notes the applicant’s evidence that his father had received basic treatment for this injury/illness, which he has allegedly suffered from for the past two years. While the Tribunal accepts that the ideal treatment for his father’s unspecified ailment may be in Peshawar or Islamabad, the Tribunal does not accept on the evidence before it that the applicant’s father has been denied medical treatment. Further, as discussed below and with the applicant in the hearing, the country information indicates that the main road from Thal to Parachinar, is open and frequently  used by civilian cars, therefore if the applicant’s father required any additional treatment which was not available in his village or in Parachinar, the Tribunal finds that he would be able to travel to either Peshawar or Islamabad for treatment.      

   48.    Based on the above, the Tribunal accepts the applicant’s claims regarding the security situation in Upper Kurram in 2007. It accepts his claims regarding the incident in which two cars which were driving in front of him were fired at, the death of his relative in 2008 when he and a number of other drivers were stopped and taken out of their vehicles and beheaded on route from Peshawar and also the kidnapping of his friend in 2009 by the Taliban. The Tribunal accepts that as a result of the unsafe conditions in Upper Kurram at that time  the applicant gave up his employment as a driver and that he remained in his village working on his farm. For the reasons discussed above, it does not accept that the applicant resumed driving in 2011, for a short period of time, before he was warned against engaging in this activity.  The Tribunal finds that the applicant has not come to the attention or was of any particular interest to the Taliban, any other Sunni groups in the area, Sunnis or people generally because he is Shia or for any other reason, in the past.  

   49.      The Tribunal has considered whether the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, if he returns to his home area in [Village 1], in Parachinar City, in Upper Kurram, FATA because of his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency, as outlined in the applicant’s adviser’s submission to the Tribunal. 

   50.      The Tribunal has had regard to the independent information provided by the applicant’s adviser in the submission to the Tribunal regarding the situation in Parachinar and Kurram Agency, including DFAT Thematic Report – Shias in Pakistan, US State Department International Religious Freedom Report for 2013,  the US Department of State Country Report on Human Rights Practices for 2014 and UNHCR’s  Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan released on 14 May 2012.  It was highlighted in the submission that the 2012 UNHCR report states that members of the Shia community, “particularly those in areas where Taliban-affiliated groups are active, such as in the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, be in need of international protection”. The adviser cited various sections of DFAT’s Thematic Report – Shias in Pakistan dated 14 April 2015 which refers to an improved situation in Kurram agency, but which also noted that there is a “high degree of generalised violence in FATA and a moderate risk of sectarian violence in some areas” and the situation in FATA remains volatile due to an ongoing counterinsurgency operations by the Pakistani security services. The adviser also referred to information in the DFAT report indicating that many internally displaced persons had returned to Kurram Agency, but that UNHCR reported in its Fact Sheet of May 2015 that no Internally Displaced Persons (IDP’s) had returned to the Kurram Agency in 2015.

   51.      The adviser cited a decision of the RRT of May 2015 which set out continued attacks on Shias in Kurram Agency, notwithstanding the reported decline in the levels of violence since 2009 and an RRT decision of December 2014 which found that despite reports of stabilisation in the region, it found the situation in Parachinar remained volatile, particularly in relation to the situation on the Parachinar-Thall road that remained unstable.

   52.      Reference was also made to the FATA Research Centre report on sectarian violence in FATA for the period July to September 2015 which it was noted provided a troubling update on the situation in Kurram Agency and also the South Asia Terrorism Portal (SATP) FATA 2015 Assessment which purportedly asserted that the threat from terrorist groups was ongoing and makes clear that sectarian attacks on Shia civilians continue to occur as revenge for counterinsurgency operations undertaken by the security forces.

   53.       The Tribunal has carefully considered the applicant’s evidence, the submissions made by his adviser and the independent evidence, including the information outlined below, as put to the applicant in the hearing, in regard to the situation in the applicant’s home area in Kurram Agency in determining whether he would face a real chance of persecution for a Convention reason, now or in the reasonably foreseeable future, if returned to Pakistan. 

   54.      The Tribunal finds that the independent evidence before it indicates that the security situation has improved in recent years and that there has been some stabilisation in the region. In July 2014, the FATA Research Centre released its quarterly report on sectarian violence in the FATA for the period April 2014 to June 2014. On the issue of security in Kurram Agency, the report noted that the region had been stable over the reporting period and that compared with the previous two quarters there had been signs of improvement:  

   Despite marked as bastion of sectarian clashes, Kurram Agency remained relatively stable in the outgoing quarter of 2014. Overall, six terrorism incidents were reported from the agency, costing thirteen lives. Most of these incidents involving bomb blasts were recorded from central and lower Kurram, whereas in the border areas of Shelwanzai Tangi, security forces also clashed with militants[3].

   [3] FATA Research Centre 2014, Security Report Second Quarter 2014, 24 July, p.20 <

   55.      In its annual security report 2014, the FATA Research Centre stated that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014. In the first quarter Kurram Agency remained turbulent, facing 17 terrorism incidents in which 16 people died and 29 were injured. It was observed that the main trend of terrorism was bomb blasts which mostly happened on dust paths and fields and were sectarian-oriented, with the victims being Sunni. It was stated that the Agency was less disturbed in the second quarter of the year with six incidents reported, four of which occurred in central and lower Kurram agency. The third quarter was again less turbulent with only one terrorism incident and in the fourth quarter Kurram Agency was described as remaining comparatively quiet among the seven tribal agencies in 2014, with a total of two incidents, one bomb blast and one target killing during the reporting period.[4]

   [4] FATA Research Centre 2015, Annual Security Report 2014, May 2015

   56.      In the Security Report for the First Quarter of 2015, it was stated that almost every agency of the tribal belt faced terrorist subversive activities in one way or the other. In relation to Kurram Agency, it was stated that areas like Shabak, in Lower Kurram Agency remained an epicentre of militant activities, mostly throughout the quarter. The Second Quarter report, covering the period April to June 2015 stated that Kurram Agency remained relatively stable in the outgoing quarter of 2015.   Only 3 security related incidents were reported from the agency and out of the three, one was a clash between militants and security forces resulting in the death of two militants while in a bomb attack, one security forces personnel was injured. In another clash between the security forces and militants, two militants reportedly lost their lives while two others were injured. The report from the FATA Research Centre covering the third quarter of 2015, from July to September 2015 provided that after remaining peaceful during the past few quarters in 2015, Kurram Agency witnessed a surge in militancy and counter militancy incidents with a total of 6 incidents recorded, which was double the three of the previous quarter. Out of the 6 incidents, one was an IED blast, one was a clash between security forces and militants, while two were target killings. One incident of air strikes and one search operation was also carried out during the period. The areas which remained turbulent during the current quarter of 2015 included Spar Kot and Tora Warai in Central Kurram, Bagan area and Yaqoobi village in Lower Kurram.

   57.      Consistent with this information, the South Asian Terrorism Portal (SATP) reported that civilian and security forces fatalities in FATA had recorded a seven years decline, while overall fatalities had been higher due to the increase in terrorist fatalities under the ongoing military operations in NWA and Khyber Agency.  It reported that total fatalities through 2014 stood at 2,863, including 2,510 terrorists, 194 security forces personnel and 159 civilians; as compared to 1,716, including 1,199 terrorists, 319 civilians and 198 SF personnel in 2013.  While SATP noted the number of major incidents (each involving three or more fatalities) in FATA increased by 48.87 per cent in 2014 compared to the previous year, this was said to be principally due to the counter-insurgency operations with the overwhelming number of fatalities occurring among groups registered as terrorists rather than civilians or security forces personnel. SATP reported that other parameters of violence such as suicide attacks, explosions and sectarian attacks remained low throughout 2014 with significantly less casualties from both suicide attacks and incidents of explosion. SATP recorded that sectarian violence in the region also registered a steep decline[5].

   [5] SATP ‘FATA Assessment 2015’

   58.      In the DFAT report on Shias in Pakistan released in April 2015  it was stated that:

   4.35 DFAT understands that a 2013 truce ('the Murree Agreement') between the Shia Turi and mostly Sunni Bangash communities in Kurram Agency is still in place (as of November 2014). The main road from Thal to Parachinar, Kurram Agency's main town is open and is frequently used by civilian cars. Federal security forces maintain armed checkpoints on this road. This has resulted in an improved security situation in Kurram Agency.

   4.36 Based on discussions with credible international non-government organisations, local representatives and residents, DFAT understands that more than 3,700 families formerly displaced from Kurram Agency have been able to return to their places of origin during 2014, including to Parachinar City and some surrounding villages in Upper Kurram. However, many Shia IDPs have remained in Kohat, Hangu, Peshawar and nearby Islamabad where they have settled and have existing support systems.

   4.37 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.[6]

   [6] Department of Foreign Affairs and Trade 2015 DFAT Thematic Report Shias in Pakistan 14 April 2015

   59.      Consistently with DFAT’s advice, the UNHCR reports that it commenced the return of internally displaced persons to Upper and Lower Kurram:

   The 23 main villages and 76 sub-villages were visited in lower and upper Kurram to determine and re-evaluate the conflict effected villages for targeted humanitarian assistance and advocacy for durable solutions. It is evident that general peace in upper and lower Kurram is restored but still the sense of un- secureness prevails among the minority groups for return.[7]

   [7] Protection cluster mission to Kurram, 22- 26 April 2014

   60.      A UNHCR report from June 2014 which detailed a review of those who had returned to a region in the Upper Kurram area stated:

   2) General situation and security in areas of return

   All key informants in the five villages showed satisfaction over the security situation in the area and they shared that they feel safe and secure currently in area of return. They unanimously stated that there is no restriction on their movement and they can freely move even though they also shared that for security purpose they are stopped at check posts by the security force staff where they are asked to show their identity documents such as CNIC. When entering to the area of origin, there are three checkpoints that the returnees have to cross before entering their area of origin. These checkpoints are guarded by the khassadar and Pakistani Army. It was shared that the military regularly checks identity documents of all those who pass through the checkpoints.

   The majority of consulted groups stated that no major security incidents had occurred since their return to place of origin, nor harassment incident has been reported by the returnees.

   When asked about the presence of land mines in the villages, all five interviewees stated that they were not aware of presence of such devices and area was cleared by the security force and political administration prior to their return. Two of the interviewed respondents indicated that were briefed about Mine and Risk Education (MRE) at Sholzan Dara embarkation point during return.[8]

   [8] UN High Commissioner for Refugees, Protection Cluster , "Post- return monitoring in areas of return Sholzan Tangi, Upper Kurrum agency - June 2014", UN High Commissioner for Refugees, Protection Cluster , 30 June 2014, CIS2F827D91287

   61.      The Tribunal is mindful that while there has been a reported decline in the levels of violence in Kurram Agency in recent years, DFAT has advised that there continues to be sectarian and terrorist attacks and that the security situation remains volatile due to ongoing insurgency operations by Pakistani security services in FATA. DFAT also assessed that there is a high level of generalised violence and a moderate risk of sectarian violence in some areas of FATA. The Tribunal notes according to FATA Research Centre’s security report for the first quarter of 2015, violence as a consequence of persistent conflict was observed in all seven agencies of FATA including Kurram Agency and recorded militant activities in the area shows that the agency still faces the menace of terrorism.

   62.      The Tribunal has considered the applicant’s response to the information it put to him in the hearing, as outlined above, that the media normally reports on high profile killings but when two, three or five people are killed, no-one reports about that. The applicant specifically referred to an incident in Nasti Kot which he claimed occurred in the month of Muharram, about [few kms] from his village, where a number of people were killed but this was not reported or mentioned. Following the hearing the applicant provided an article from Dawn dated 18 November 2014 reporting on an incident which occurred in the Nasti Kot area in Parachinar district when an Improvised explosive device (IED) was planted on the roadside and was detonated as a school van passed nearby, killing two and wounding five.

   63.      While the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Upper Kurram Agency where the applicant’s village is located, as borne out by the information discussed above, the Tribunal finds on the range of sources consulted that the situation has changed significantly as compared to previous years and that there has been an improvement as a result of stabilisation in the region. The independent information provides that in Kurram Agency in particular, 2014 saw a steady improvement in the security situation from the beginning of the year, which ultimately led to the area being described as comparatively quite. The Tribunal notes that in DFAT’s country report of April 2015, it was assessed that there is a moderate risk of sectarian violence in some areas of FATA. The Tribunal does not accept on the basis of all the information before it, including information from the FATA research centre and SATP, that Upper Kurram, including Parachinar, is one of the areas where such a risk exists. The Tribunal refers to the information from the FATA research centre cited above, which reports that most of the incidents in 2014 in Kurram Agency were in Central and Lower Kurram Agency. This is confirmed in the more recent DFAT report dated 15 January 2016 in which DFAT assesses there is a low level of sectarian violence overall in the FATA.

   64.      The Tribunal has considered DFAT’s assessment in the April 2015 report that the situation in FATA generally remains volatile due to ongoing counterinsurgency operations by the Pakistani security services. The Tribunal refers to the information cited above from the South Asian Terrorism Portal which reported an increase in major incidents in FATA in 2014, compared to 2013, due to the counter-insurgency operations, which resulted in an overwhelming number of fatalities in those classified as terrorists, as opposed to civilians and security forces personnel. The Tribunal notes the reference made by the applicant’s adviser, in their post hearing submission, to the 2015 assessment made by SATP which makes clear that sectarian attacks on Shia civilians continue to occur as revenge for counterinsurgency operations undertaken by the security forces.  While the Tribunal appreciates that there will continue to be instability as a result of the authorities continued struggle with terrorist, militant and sectarian groups, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm as a result of counterinsurgency operations in FATA more generally.  The Tribunal refers to the information cited above from UNHCR, detailing a review of those who had returned to the region in Upper Kurram, in which it was reported that all key informants from five villages expressed satisfaction with the security situation in the area and shared that they felt safe and secure. Those who were consulted also stated that no major security incidents had occurred since their return.    

   65.      Similarly, the Tribunal notes DFAT’s assessment in the April 2015 report that there is a high degree of generalised violence in the FATA. However, given all the country information before it, as discussed above, the Tribunal does not accept that Upper Kurram is one the areas where the this level of risk is present. This is also confirmed in the more recent DFAT report from January 2016 in which it was stated that the level of generalised violence varies throughout FATA, with this violence greatest in North Waziristan and Khyber Agencies because of ongoing military activities associated with Operation Zarb-e-Azb. DFAT assessed there is a low level of generalised violence in Kurram and Orakzai Agencies.  While the Tribunal accepts that there is some level of risk to the applicant in the context of generalised violence, it finds on the basis of all the evidence before it that this risk is remote and does not accept that there is a real chance he would be targeted for harm based upon any Convention characteristics, including his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency. 

   66.      The Tribunal has considered the information provided by the applicant’s adviser in a further submission received on 18 December 2015 regarding a bomb explosion which occurred on 13 December 2015 in a market place in Parachinar, in which all those killed were Shia. The adviser included reports from the Guardian and Dawn which provided that two extremist groups Lashkar-e-Jhangiv Al Alami (LeJ) and Ansarul Mujahideen based in  South Waziristan Agency had claimed responsibility for the attack. LeJ had explained the attack as being in retaliation for Shia support of Iran and Syrian President Bashar al-Assad and had warned Shia parents if they don’t stop their children from participating in the war in Syria, they would face more attacks.  While the applicant’s adviser asserted that this attack is a clear indication that sectarian violence is still a significant issue in Parachinar and that Shia civilians are still at very high risk, the Tribunal does not accept that this type of attack, which has been extremely rare in the area over the last few years, represents a certain change in the security situation that has prevailed for several years now, despite threats of similar attacks made by L-e-J. Although the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency where the applicant’s village is located, as borne out by the information discussed above, including the recent attack in December 2015, the Tribunal finds on the range of sources consulted that the situation has changed significantly as compared to previous years and that there has been an improvement as a result of stabilisation in the region since the beginning of 2014. The Tribunal finds that there is nothing in the country information to suggest that this recent attack threatens the truce that has been in place since 2013. Nor does the Tribunal accept on the evidence before it that it can be extrapolated from this particular incident that the security situation in Parachinar or in Kurram Agency generally, has deteriorated such that there is a real chance that any Shia member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.

   67.      While the Tribunal accepts that there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured, the Tribunal finds that the overall country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards, and when this is considered together with the applicant’s profile as an ordinary Bangash Shia and the fact that the applicant’s family have remained in the area without experiencing any serious harm in recent years, the Tribunal finds the chance of the applicant facing serious harm from the Taliban generally or if he attends religious gatherings, or from other extremist groups or individuals, Sunnis or people generally for reasons of his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency, is remote. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, for a Convention.

   68.      The applicant also claimed in the hearing the constant threat of letters being distributed by Daish. He stated when he spoke to his father about the situation at home, his father told him that “guys” are distributing letters around the cities telling people to not let their kids go to school and warning people not to be involved with foreign people. When asked if his family had received such letters, the applicant stated the letters were not sent directly to his family but to the village. In response to the Tribunal’s question as to whether his father had told him who in particular in his village had received these letters, the applicant explained that the letters were not sent to a particular group of people but just to the village generally. He explained they were dropped overnight and people found them during the day. When asked what he meant when he said they were dropped overnight in the village, the applicant stated like how they deliver mail. The Tribunal asked the applicant why Daish would not want children to attend school and how this was relevant. The applicant stated he was not sure why they have done that. He stated he could not exactly be sure that it was Daish and suggested it could have been the Taliban. The Tribunal does not accept on the applicant’s somewhat vague evidence regarding these letters that were allegedly left in his village, that either Daish or the Taiban have distributed letters warning people not to send their children to school or to be involved with foreign people. Following the hearing, the Tribunal received an article from The Express Tribune dated 4 September 2014, in which it was reported that Islamic State of Iraq and Syria (ISIS) had made it first public appearance in Pakistan with the distribution of pamphlets seeking the establishment of a Khilafat, in the suburbs of Peshawar, Khyber-Pakhtunkhwa. While the Tribunal acknowledges some evidence of limited activity on the behalf of Daish in Pakistan, the Tribunal does not accept on the limited evidence provided by the applicant regarding the alleged activities of Daish in his village or the article from The Express Tribune, that ISIS or Daish are getting close to Parachinar or the applicant’s village, that they have distributed leaflets in Upper Kurram or that they will start targeting the people of Parachinar or in Kurram Agency, particularly Shias, in the reasonably foreseeable future.

   69.      The Tribunal notes in submissions from the applicant’s adviser it was submitted the applicant fears returning to Pakistan due to his extended presence in Australia, a western country with a Christian heritage, as an asylum seeker. When asked what he believes would happen to him on return to Pakistan as a result of this particular profile, the applicant stated that they will know who he is when he returns and because he was a driver, he does not know any other way of earning a living. He stated because he has been absent from the country, if he goes back they will clearly distinguish he is a Shia and he has been out of the country. The Tribunal asked the applicant why they would want to harm him because he has been out of the country. He stated because he has left the country and has associated with a western country and for that reason, because they are fanatical, they will want to target him.

   70.      Whilst there are some reports that militant groups have targeted Western or foreign nationals there is no information before the Tribunal that persons who have returned to Pakistan after spending time in a Western country are targeted or harmed for that reason upon their return.  As put to the applicant in the hearing, in the DFAT Country Report on Pakistan dated 14 April 2015, it was reported that western influence remains pervasive in many parts of Pakistan and that many Pakistanis have relatives living in western countries and many more aspire to migrating and living abroad. Those living abroad return to Pakistan frequently to visit relatives and are not at any increased risk because they have spent time in western countries.  As put to the applicant in the hearing, DFAT also stated that they had no evidence that indicates individuals would be subject to discrimination or violence as a result of them having spent time in western countries.[9] 

   [9] Department of Foreign Affairs and Trade 2015 DFAT Country Report – Pakistan, 14 April 2015

   71.      Based on the country information and the fact the applicant left the country legally on his own passport and no-one, apart from his family, knows where he has gone or that he has been in Australia, the Tribunal finds that the applicant does not face a real chance of persecution, now or in reasonably foreseeable future from the Taliban or anyone else on account of his extended presence in Australia (a western country with Christian heritage) as any asylum seeker or his membership of the particular social groups “returnees from the West” or “failed asylum seekers returning from a Western country”.

   72.      Considering the applicant’s claims both individually and cumulatively, as a Bangash Shia from Kurram Agency who has spent an extended period of time in Australia, a western country with a Christian heritage and has applied for asylum, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency  if returned to Pakistan now or in the reasonably foreseeable future. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).

   Complementary protection obligations

   73. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

   74.      Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings and reasons of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Pakistan will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

   75.      The Tribunal has considered whether the applicant would suffer significant harm based on his Shia religion, his Bangash ethnicity, an imputed political opinion based on his Shia religion, an imputed political opinion in opposition to the Taliban and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar and his extended presence in Australia (a western country with Christian heritage) as an asylum seeker, or his membership of a particular social group of Bangash Shias from Kurram Agency. The Tribunal is not satisfied on the basis of the country information before it and the Tribunal’s findings and reasons discussed above, regarding the improved security situation in the applicant’s home area located in Upper Kurram in Kurram Agency, FATA, and the applicant’s particular profile, including his occupation, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk he will suffer significant harm.

   76.      While the Tribunal accepts that there may continue to be some sectarian, militant and generalized violence in the FATA generally, based upon all the country information before it and the Tribunal’s earlier findings and reasons, the Tribunal does not accept that the applicant faces a real risk of significant harm because of sectarian, militant or generalized violence including in his home area in Upper Kurram.  The Tribunal also finds on the basis of the country information cited above and the applicant’s individual circumstances, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm due to his extended presence in Australia (a western country with Christian heritage)as an asylum seeker or as a returnee from a Western country or as a failed asylum seeker.

   77. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicant’s life is threatened or that he will be arbitrarily deprived of his life; that the death penalty will be carried out on him; or that he will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

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

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

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

   DECISION

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

   Sydelle Muling
   Member