1406319 (Refugee)

[2015] AATA 3187

1406319 (Refugee) [2015] AATA 3187 (17 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1406319

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:17 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 17 July 2015 at 4:21pm

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] November 2012 and the delegate refused to grant the visa [in] March 2014.

3. The applicant appeared before the Tribunal on 9 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.

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

   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.

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. 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’).

9. 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

10. The applicant claims to be a citizen of Pakistan who was born on [date] in [Village 1], Parachinar, in Kurram Agency, in the Federally Administered Tribal Areas (FATA), Pakistan. He lived in [Village 1], Parachinar, in Kurram Agency, FATA from November 2002 to 2007. From 2007 to March 2012 he lived in [a city] in [Country 2].  He returned to Pakistan and resided in [Village 1] from March 2012. He completed [number] years education and is fluent in Pashtu and Urdu and can speak and read Arabic/Persian. The applicant described his occupation before coming to Australia as [occupation]. He departed Pakistan legally [in] April 2012, arriving in Australia [in] July 2012. His [family] are residing in Pakistan. 

11. The applicant presented his claims in his protection visa application [in] November 2012 (folios 48 to 85 of the Department File [number deleted]), a Departmental interview he attended [in] July 2013 (attached to cover of the Department File [number deleted]) and at his Tribunal hearing on 9 July 2015.  The following is the statutory declaration made by the applicant attached to his protection visa application:

    Background Information:

    My name is [name deleted] and I am a [age] year old male born in [Village 1], Parachinar, FATA, Pakistan. My ethnicity is Pashtun and I am of the Turi Bangash Tribe. My religion is Shia Muslim. I am married and have [children]. My entire family is currently residing in Parachinar, Pakistan.

    When the people in Afghanistan attacked people in Parachinar, two of my [relatives] were killed. This was too much for my father to bear, and he died from a [medical condition] in approximately 1989.

    Why I left my home country:

    I left Parachinar in 2007 originally due to work opportunities. I was in Parachinar at the very early stages of the Taliban invasion of our area. I recall that there was an attack which took place on April 2007 and I left soon after this and before the full-scale takeover by the Taliban of Parachinar.

    The Taliban entered Parachinar in 2007 because they were attempting to get through to the American bases in Afghanistan which were close to Parachinar/Afghanistan border. The route through Parachinar was highly convenient for them because Parachinar is mountainous and there was more safety for the Taliban in taking this route. Given that this route is in Parachinar, it was under the control of the Bangash and Turi tribes who were not supporting the Taliban in their attacks on the Americans. The tribes were not allowing them to get through to the American base because they were afraid of retaliation by the Americans if they cleared the passage for the Taliban to Pakistan.

    Due to this disapproval and resistance by the Bangash and Turi tribes, the Taliban formed a great hatred for us. Their hatred also stemmed from the fact that we are Sunni Muslims and we are Shias. As Shies, the Taliban thinks that we are not Muslims and they call us infidels. They are particularly bitter towards us because we are also Pashtuns like them, but we are Shias. They believe that we should be on their side and we are not. Another reason why we were afraid of the Taliban taking over is that they would be trying to enforce their own version of Islam upon us. For example, they would try and make us grow a beard and stop females from studying.

    The attacks in Parachinar have only escalated since 2007. The Taliban continuously bombed the area and many people have been killed. The Taliban especially target those that are from the Bangash tribe as we are seen as dissenters. In November 2007 there was a large attack in which many people were killed and injured. My [brother] lost his leg in this attack.

    I was fortunate enough to be in [Country 2] at the time that these attacks were taking place but was compelled to return on some instances to Pakistan to take care of my ill brother.

    In March 2012, I returned to Pakistan permanently as I was no longer able to live in [Country 2] due to visa issues. The conditions in Parachinar were very bad. Food was difficult to come by, roads were blocked and we struggled to travel outside of Parachinar. The Taliban was very close to our village. Their attacks were becoming more frequent and they would be shooting missiles which killed many people.

    I was approached on several occasions by members of the Bangash tribe to join them in fighting against the Taliban. When I refused they would threaten me if I did not join them. I was the only person they could go after in my family because my father is deceased and my brother is disabled.

    Due to all the above factors, I realised that if I did not leave the country, I would be killed.

    What I fear might happen if I go back to my home country:

    I am fearful of returning to Pakistan as I am certain that I will be killed.

    Who I think will harm or mistreat me if I go back:

    I believe that I will be harmed and mistreated if I was to return to Parachinar by the Taliban who are still highly active in the area. Even if I was to live elsewhere, there are still many extremists groups in other parts of Pakistan who are affiliated with the Taliban. Such groups include the Lashkar-e-Jhangwi and Sipah-e-Sohaba. Lastly, I am also fearful of the member of the Turi tribe who regularly ask other strong and healthy members of the Turi tribe to join them in their fight against the Taliban.

    Why I believe they will harm or mistreat me if I go back:

    I believe that I will be harmed and mistreated in Pakistan because I am a Shia Muslim and I am also a member of the Bangash tribe.

    It is well known that the Taliban dislike the local tribes of Parachinar who have opposed them. We are easily identified as being Bangash and Shia Muslims from the way that we offer our prayers, the scars on our back which we have from participating in the Muharram festival of zangeer, our identity cards and our distinct Pashto accent.

    Further to this, because we share the Pashtun ethnicity with the Taliban, they expect us to support them. The fact that we don't and that we are of a Shia faith that they oppose, this only heightens their anger towards us. They might believe that we have betrayed them and we haven't assisted them in their case.

    The fact that I have been outside the country for a very long period of time is also going to work against me. If the Taliban finds out that I came to a Western country to seek Australia's protection, which I am sure that they will because news travels fast in Pakistan, they will no doubt target me and kill me. It is obvious that they hate the Americans and the westerners and given that I am now affiliated with foreigners, I will be singled out and killed. They will think that I am an infidel and that I am not even supporting my own people.

    I cannot live anywhere in Pakistan either. The persecution of our people is not just limited to Parachinar. Even if I lived in other areas of Pakistan, I would be easily identified as mentioned previously from the manner in which I pray, my accent and my identity documents. The pro-Taliban terrorist groups operate in other areas of Pakistan as well.

    I am also fearful of being harmed by the Turi Shias who have tried to recruit me. I have refused to join them and they may believe that I have betrayed them.

    Why I believe the authorities in my home country will not protect me if I go back:

    I cannot seek protection from the Pakistani authorities because I believe they themselves might be the ones that might be supporting the Taliban. If they wanted to resolve the issue, they would have done so by now.

    Why I think I will suffer significant harm:

    I believe that I will suffer significant harm if I was to return on the basis that I am a member of the Bangash tribe and a Shia Muslim.

    Other matters I would like the Department to take into consideration:

    Many of the dates that I have provided in my application are approximates.

12. [In] March 2014, the delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection (Class XA) visa. The applicant subsequently applied to the Tribunal for review of this decision on 2 April 2014. Attached to the review application was a copy of the delegate’s decision.

13. On 3 July 2015, the Tribunal received a detailed submission from the applicant’s adviser.

14. 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.

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

16. The applicant claims to be a citizen of Pakistan and provided a copy of his Pakistan passport, domicile certificate and character 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.

17. 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).

18. The Tribunal accepts the applicant was born in the [Village 1] in Parachinar, in Kurram Agency, FATA and lived there until 2007 when he left Pakistan and went to [Country 2] for work purposes, as he claimed in his statutory declaration attached to his protection visa application. Consistent with the applicant’s evidence, the applicant’s passport and birth, marriage and domicile certificates each state that he originates from the village of [Village 1] in Parachinar, in Kurram Agency.

19. 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 domicile certificate which confirms that he belongs to the Bangash tribe. Independent sources indicate that the Pashtun Bangash tribe is reported to include both Shias and Sunnis.[1] Bangash clans living in Lower Kurram in the Kurram Tribal Agency are reported to be “all Sunnis, while other Bangash clans are Shi’a, Sunni, or a mix of both.” The Kurram Tribal Agency is the only tribal agency in FATA to have a significant Shia populace, with the Shia making up around 40% of the population. The Turi tribe, which is the only wholly Shia Pashtun tribe, inhabits Upper Kurram, and Sunnis live in Lower Kurram.[2] The Bangash tribe has been referred to as being “mostly Sunni”,[3] and “predominately Sunni”. An International Crisis Group report from October 2009 refers to Sunni-Shia violence in Kurram assuming “tribe-versus-tribe dimensions” with conflict occurring between “the predominately Sunni Bangash tribe that supports the TTP”, and the Shia Turis, which is the dominant clan in Parachinar.[4] The Shia section of the Bangash tribe is also reported to live in Parachinar.[5]

    [1] International Crisis Group 2005, The State of Sectarianism in Pakistan, Asia Report N°95, 18 April, p. 18

    [2] Zahab, M.A., ‘Sectarianism in Pakistan’s Kurram Tribal Agency’ in The Jamestown Foundation 2009, Terrorism Monitor, Volume VII, Issue 6, 19 March, p. 8

    [3] Ghufran, N. 2009, ‘Pushtun ethnonationalism and the Taliban insurgency in the North West Frontier Province of Pakistan’, Asian Survey, Vol. 49, Issue 6, November/December, p. 1110 

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

    [5] Taj, F. 2010, ‘The Punjabi and Pakhtun IDPs of Parachinar’, Daily Times, 16 January – Accessed 2 June 2010

20. The applicant claimed in the hearing that he fears returning to Pakistan because the Taliban will kill him; they will cut his arm and legs and behead him. When asked why the Taliban would want to harm or kill him, the applicant stated that it is because the Taliban hates Parachinar people. He explained that the Parachinar people had fought the Taliban for three years. In 2007, the Taliban came to his area and wanted to pass through there into Afghanistan but the Parachinar people stopped them from passing through their area into Afghanistan.

21. The applicant’s evidence was that he left Pakistan in 2007 and at that time the fighting had not started completely; it had started in Lower Kurram and not in his area in Upper Kurram. When asked if he experienced any problems from the Taliban or anyone else prior to him departing the country, the applicant stated that he had not experienced any problems before he left for [Country 2] in 2007. 

22. While the applicant claimed in the hearing that during the 4 or 5 years that he was working in [Country 2], he returned to Pakistan only two times, the Tribunal notes according to the applicant’s protection visa application, he returned to Pakistan 3-4 times during the period between 2007 and March 2012 when he was working in [Country 2]. The Tribunal notes when asked how long he would stay when he returned to Pakistan while on leave from his job in [Country 2], the applicant claimed a month and two months. He also claimed the last time he went home in 2011 he spent about four to five months. The applicant claimed that when he went back the roads to his village were blocked and there were restrictions on the supply of groceries, food and medicines during a period of three years. He explained that he accompanied an army convoy to the area when he returned, so he had protection. However, the applicant also claimed that another convoy, which he was not with, was attacked and 200 people were killed in 2008.

23. When the Tribunal asked the applicant if he personally experienced any problems on the occasions he returned to Pakistan, the applicant explained that at the time he went to Pakistan the fighting was going on and the Bangash and Turi had groups fighting the Taliban and wanted every young man to fight with them so he was unable to get out of the house because he did not want to expose himself to these groups. He claimed if they knew about his existence, they would take him to fight. The Tribunal asked the applicant if he ever had contact with the Bangash or Turi tribes that wanted him to fight. The applicant claimed that the leaders of the groups had sent him letters when he was on leave at home, as well as when he was not there. During his stay in Pakistan for four or five months, the applicant claimed he received maybe four to five letters. He confirmed that no other contact was made with him by either the Bangash or Turi groups apart from these letters.

24. The Tribunal does not accept that the applicant received any letters from the leaders of either Bangash or Turi groups wanting him to join them in fighting against the Taliban. As the Tribunal put to the applicant in the hearing, he had not mentioned anything prior to the hearing, particularly in his statutory declaration outlining his claims for protection, that he had been sent any letters during his visits to Pakistan when he was on leave from his work in [Country 2]. The applicant responded stating that he probably did not understand. As the Tribunal put to the applicant it has difficulty accepting that if he had been sent numerous letters from Turi and Bangash groups on each occasion that he returned to Pakistan, that he would fail to mention this prior to the Tribunal hearing. The Tribunal also does not accept that the applicant failed to understand or appreciate the significance of this claim given that he had referred to being approached by members of the Bangash tribe after he finished working in [Country 2] and returned to live in Pakistan. Further, the Tribunal finds the applicant’s evidence in the hearing that he would stay in the house so as not to expose himself to the Bangash and Turi tribes somewhat inconsistent with the applicant’s claim that he received numerous letters over a period of several years from the people he was allegedly concealing himself from. 

1. The Tribunal also does not accept that in the month between the applicant’s return to Pakistan and his final departure on 12 April 2012, that he had any contact from either Bangash or Turi groups. The Tribunal notes in the hearing the applicant claimed that he received one letter in that period of a month. When asked if any members of either the Bangash or Turi tribe approached him, he stated not face to face conversation. The Tribunal asked the applicant if in that period of a month, apart from the one letter he received, he had  any other contact at all with members of the Bangash or Turi tribe in relation to fighting with them. The applicant stated no because he just stayed at home all the time and then departed the country for Australia. The Tribunal asked the applicant if anything else happened in the period between his return to Pakistan in March 2012 and his departure [in] April 2012, apart from receiving the one letter. He stated that was the time the Taliban did lots of attacks and lots of rockets were fired by them and many houses were ruined and people were killed so that was why he was unable to leave the house. The applicant confirmed the only thing that happened to him personally in the month he was in Pakistan prior to his departure in April 2012 was the receipt of one letter.    

2. However, the Tribunal notes according to the applicant’s statutory declaration attached to his protection visa application, he claimed that after he returned to Pakistan permanently in March 2012 he was approached on several occasions by members of the Bangash tribe to join them in fighting against the Taliban and when he refused they would threaten him if he did not join them.  The Tribunal noted that there was nothing in his statutory declaration suggesting that he received one letter during that period of time. When the Tribunal put the inconsistency between his evidence at the hearing, as compared to his claims in his statutory declaration, the applicant claimed that they approached the house several times and at that time he was hidden at home and his mother went to the door and talked to them and that was when they left the letter. The Tribunal does not accept the applicant’s explanation given that he made no mention in the hearing when specifically asked several times about what happened during the period he returned permanently to Pakistan, and only after the Tribunal put this information to him, that they approached his home several times. The Tribunal also observes that according to his statutory declaration outlining his claims, the applicant claimed that when he was approached by members of the Bangash tribe to join them and he refused, they threatened him.  The Tribunal finds the applicant’s oral evidence in the hearing is not consistent with this claim as he did not raise anything suggesting that he refused the members of the Bangash tribe or that he was subsequently threatened if he did not join. The Tribunal does not accept the applicant’s subsequent evidence, when this information was put to him, that when the Bangash members approached the house and spoke to his mother they told his mother that he would be killed if he did not go with them.

3. Based on the above, the Tribunal finds that the applicant has not come to the attention or been of any interest to the leaders or any other members of either the Bangash or Turi groups fighting against the Taliban and other groups in the area. The Tribunal does not accept that the applicant received any letters either while he was in Pakistan on leave from his job in [Country 2] or while he was absent from the country. Nor does the Tribunal accept that when the applicant permanently returned to Pakistan in March 2012, he received a letter from either the Bangash or Turi groups or that he was approached on several occasions by members of the Bangash tribe to join them in fighting against the Taliban and was threatened when he refused. The Tribunal also does not accept that the applicant’s mother received any visit from members of this group and took receipt of the alleged letter from these groups. The Tribunal therefore does not accept the applicant’s claim that if he returns to his village the Turi and/or Bangash groups would not leave him because he refused their invitation to fight against the Taliban. The Tribunal does not accept that the applicant will not be allowed to live in the Parachinar area by these groups, as he claimed in the hearing, or that they may even kill him. For the reasons provided above, the Tribunal finds there is no real chance that the applicant will be persecuted by members of the Bangash or Turi tribes, now or in the reasonably foreseeable future, on his return to Pakistan for a Convention reason, including his Bangash/Turi ethnicity and/or because he was asked but refused to take up arms against the Taliban.   

4. The Tribunal accepts the applicant’s claims regarding the tension over recent years between Shia and Sunni Muslims in his area. The country information indicates that violent conflict between Shia Turi/Bangash and Sunni Bangash in Kurram Agency has occurred sporadically since the 1970’s and more recently since 2007, when in April 2007 violence erupted between Turi Shias and members of the local Sunni Bangash tribe, after “objectionable” slogans were chanted during a religious procession.[6] The Tribunal notes according to the FATA Research Centre, Security Report First Quarter (January –March) 2015, Kurram Agency has reportedly suffered from sectarian violence since the Islamization of Pakistan by General Zia and has been fuelled since the 1980s and amplified by advanced weapons that passed through the agency during the Afghan Jihad[7]. 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.[8] 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. 

   [6] Chandran, S. 2008, Sectarian Violence in Pakistan’s Kurram Agency, Pakistan Security Research Unti, Brief Number 40, 22 September, pp 4-5.

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

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

5. The Tribunal has carefully considered the independent information provided by the applicant’s adviser in the submission to the Tribunal regarding the situation in  and Kurram Agency. The Tribunal notes that the information from the International Institute of Strategic Studies (IISS) Armed Conflict Database and article ‘Kurram: children of a lesser god’ by Dr Mohammad Taqi, from The Daily Times Pakistan are both dated from 2012 and discuss the situation in Kurram Agency at that particular point of time in the sectarian conflict.

6. However, the independent evidence before the Tribunal 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[9].

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

7. In its annual security report 2014, the FATA Research Centre stated that 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.[10]

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

8. 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[11].

   [11] SATP ‘FATA Assessment 2015’

9. 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.[12]

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

10. 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.[13]

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

11. 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.[14]

    [14] [Information deleted].

12. 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. 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.

13. While the Tribunal accepts that there continues to be ongoing generalised and 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 and which ultimately led to the area being described as comparatively quite. The Tribunal notes that in DFAT’s recent country report, it was assessed that there is a moderate risk of sectarian violence in some areas of FATA. The Tribunal has considered all the information before it and does not accept that Upper Kurram 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. The Tribunal also finds the return of some 3,700 families formerly displaced  from Kurram Agency to their places of origin, including surrounding villages in Upper Kurram, strongly suggests that the risk of sectarian violence in this particular area is less than moderate. 

14. The Tribunal has considered DFAT’s assessment 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. 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.  Again, 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.     

15. Similarly, the Tribunal accepts DFAT’s assessment that there is high degree of generalised violence in the FATA, however the Tribunal finds the applicant would not be in a position different from the general population of FATA, that is, that the violence faced by the applicant is the same as that faced by all members of the population. The Tribunal finds that such generalised violence is not harm involving “systematic and discriminatory conduct” towards him but indiscriminate violence which may be faced by all members of the population. Although the Tribunal accepts that there is some level of risk to the applicant in the context of generalised violence, the Tribunal finds 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 the applicant’s Shia religion, his Bangash ethnicity or his membership of a particular social group of Turi (or Bangash) Shias.

16. The Tribunal has considered the applicant’s evidence in the hearing that 3 or 4 days ago there was an attack on army forces on the road to Parachinar  and 3-4 army people were killed. He claimed almost daily bombs explode on the road and one or two people are being killed every day. As the Tribunal put to the applicant in the hearing, DFAT has reported that the main road between Thal to Parachinar is open and is frequently used by civilian cars and federal security forces maintain armed checkpoints on the road. The Tribunal also notes the information from the UNHCR report from June 2014 reviewing those who had returned to the Upper Kurram area reported that informants unanimously stated that there is no restriction of their movement and they can freely move even though they are stopped  at check posts by security force staff for security purposes. The Tribunal does not accept on the evidence before it that the risk to travellers on the road to Parachinar is more than remote.

1. The applicant also claimed that the Taliban have surrounded them so they are not safe at all. He claimed while there may be peace for 10-20 days suddenly they will attack or start insurgency daily. Following the hearing, the Tribunal received  several articles including an article from the Tribune dated 18 February 2015, Terror in Islamabad: Gun and suicide attack leaves 3 dead,. reporting on a suicide bombing in Lahore; an article purportedly from the Global Research Centre dated 3 February 2015, Terrorist Killings directed against Pakistan Shia Population which reported an explosion inside a central Imambargah Shia mosque in Shikarpur district in Sindh province and discussed the history of extremism in Pakistan; an article from ABC news dated 30 January 2015 reporting on the same bomb blast in Shikarpur; and an article purportedly from The Washington Post dated 15 January 2014, Sectarian killings soar in Pakistan, raising fears of regional spillover which discussed the violence against Shias and other minorities which had spread to the major cities and was increasingly targeting the country’s professional classes and reported that Pakistan’s death toll from sectarian violence was the highest in 2013, since the South Asia Terrorism Portal started tracking the statistics in 1989. The Tribunal has considered this information, which it notes does not specifically refer to the situation in FATA or to the applicant’s home area in Upper Kurram and therefore places more weight on the evidence discussed above, regarding the improved security situation in FATA since 2014 and stabilisation of the area over a protracted period of time as a result of counter-insurgency operations in the region, resulting in the return of IDP’s to Upper Kurram.

2. The applicant also claimed in the hearing that recent news, including Pakistan’s Dawn News, reported that the Daish people, which is ISIS, are also getting close to Parachinar and they have threatened the people of Parachinar. In the submission received following the hearing, the applicant included a copy of a media report (which appears to be dated 9 November 2014) suggesting that a ‘secret information report’ sent by the provincial government in Balochistan to the federal government had claimed that between 10,000 and 12,000 followers from the Hangu and Kurram Agency tribal areas had been recruited by ISIS and that ISIS had asked elements of the TTP and the Lashkar-e-Jhangvi to join its ranks to attack military installations and government buildings in Khyber Pakhtunkhwa and also target the Shia community in Pakistan.  However, the Tribunal also note that the report also states that ISIS’s presence has not been officially established so far and that a security expert described it as a perceived threat. The Tribunal does not accept on the evidence provided by the applicant that ISIS or Daish are getting close to Parachinar or that they will start targeting the people of Parachinar in the reasonably foreseeable future.

3. 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/Turi Shia and the fact that the applicant’s family have remained in the area over the last seven or so years without experiencing any serious harm, the Tribunal finds the chance of the applicant facing serious harm from the Taliban either for reasons of his Shia religion, his Bangash ethnicity or membership of a particular social group of Turi Shias or Shias from Kurram Agency or otherwise persecuted in the context of sectarian attacks is remote.  The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm for this reason.

4. The Tribunal has also considered the applicant’s claims to fear harm because he is a failed asylum seeker from a Western or infidel country. 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.  In 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.  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.[15] 

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

5. Although the applicant claimed that he left the country for protection and because of this he would be persecuted, the Tribunal notes that this particular fact would not be known to anyone as applying for protection is a private and confidential process. The Tribunal does not accept the applicant’s unsubstantiated claim in the hearing  that there are spies linked to the big groups including the Taliban, that would identify him and what purpose he has been in Australia for. The Tribunal does not accept in circumstances where the applicant left the country legally on his own passport, no-one, apart from his family, knows where he has gone or that he has been in Australia and the applicant has previously been absent from the country for several years for work purposes, and he had not experienced any problems from the Taliban or anyone else on the occasions he returned to the country, that the Taliban or anyone else would be aware or have any interest in knowing where the applicant has been.

6. Based on the country information and his individual circumstances as outlined above, 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 membership of particular social groups “returnees from the West” or “failed asylum seekers returning from a Western country.

7. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Shia religion, his Bangash ethnicity or his membership of the particular social groups of Turi Shia, returnees from a western country, failed asylum seekers or Shias from Kurram Agency or for any other Convention reason 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

8. On the basis of the applicant’s claim to be a national of Pakistan and his Pakistan passport, the Tribunal finds that Pakistan is the applicant’s receiving country for the purposes of s.36(2)(aa).

9. 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.

10. 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 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.

11. The Tribunal has considered whether the applicant would suffer significant harm based on his Shia religion, his Bangash ethnicity, his membership of the particular social groups Turi Shia and Shia from Kurram Agency or for any other reason. The Tribunal is not satisfied on the basis of the country information discussed above, regarding the improved security situation in the applicant’s home area of Upper Kurram in Kurram Agency, FATA, and the applicant’s particular profile, 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 as a Bangash/Turi or as a result of his Shia religion or a combination of both these factors.

12. 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, 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 as a returnee from a Western country or as a failed asylum seeker.

13. 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).

14. 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).

15. 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).

16. 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

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

    Sydelle Muling
    Member