1410882 (Refugee) - [2016] AATA 4267

1410882 (Refugee) [2016] AATA 4267 (29 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1410882
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Bruce Henry
DATE:29 July 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 29 July 2016 at 4:27pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] June 2014.
The applicant appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 4267
Decision Date: 29 July 2016

CaseChat Overview and Summary

The Tribunal considered the application of a Pakistani citizen who claimed to be a Pashtun Turi and a Shia Muslim from the Upper Kurram Agency. The applicant alleged he left Pakistan due to persecution by the Taliban and Shia militias, stemming from his volunteer work with charities and his refusal to join Shia militias. He claimed his life was in danger because he is Shia and a pacifist, and that Pakistani authorities would not protect him.

The legal issues before the Tribunal included determining whether the applicant had a well-founded fear of persecution based on his membership in a particular social group (Shia Muslims) and his political opinion (pacifism), and whether the Pakistani authorities were unable or unwilling to protect him. The Tribunal was required to consider relevant country information assessments from the Department of Foreign Affairs and Trade (DFAT) and departmental policy guidelines concerning complementary protection and refugee law.

The Tribunal reasoned that the applicant's claims, particularly regarding past persecution and the ongoing threat from both the Taliban and Shia militias, warranted further consideration. It noted the DFAT report indicating that while sectarian violence had decreased overall, Shias remained targets in certain areas, including the applicant's region of origin. The Tribunal found that the applicant's fear of persecution was well-founded, and that the capacity constraints of Pakistani authorities limited their ability to provide adequate protection to Shia communities.

Consequently, the Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention. The matter was remitted for reconsideration with a direction that the applicant satisfied the criterion set out in s.36(2)(a) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The application and the applicant's written claims are on the departmental file which is before the Tribunal. The applicant attended an interview at the Department [in] March 2013, and a recording of the interview is located on the departmental file. No further claims or submissions have been received by the Tribunal during the course of the review. In his application the applicant claimed to be a Pashtun Turi and a Shia Muslim from [a certain] area in the Upper Kurram Agency of Khyber-Pakhtunkhua Provicnein Pakistan. He claims to be a Pakistani citizen, and the Department has accepted that claim based on the available identity documentation. The applicant’s claims were set out in a statutory declaration that accompanied the application, in which he said:My parents are deceased. We are [number] siblings, [details of composition]. They all live in Parachinar and only [one sibling] and myself are single.Why I left my country:While I was working as a driver, I used to do volunteer work for the local [Charity 1], driving people to and from their head office. The Taliban did not like that. In 2008, while I was driving passengers from Parachinar to Peshawar, my car was stopped by the Taliban and I was arrested. I was held for about four hours during which time, my back was inspected. When the Taliban saw the scars in my back, they realised that I was a Shia and they slashed my back with big knives. I still have the scars from this episode. After this, I was left unconscious in the bush and some villagers picked me up and took me with them. They then asked my family to pay ransom money and after a month, my family paid a large amount and I was released. The villagers were not Taliban, they were Sunnis.At the beginning of 2012, while I was driving my [vehicle] with passengers through [a location], my vehicle was showered with bullets. [Number] of my passengers died as a consequence of the bullets and [number] were injured. I was not injured. I called the army to assist, but nobody showed up so I drove my [number] passengers, including the [dead] and the [injured] to Parachinar myself.After that episode, I received threatening calls and letters. I was asked to stop volunteering for the [Charity 1] and the [Charity 2]. Since I was also the founder of an unregistered charity called [Charity 3], we used to receive donations to assist people injured in war. The Taliban did not like my involvement with these organisations. In addition, Shia militias approached me to recruit me to fight the Taliban. I am a pacifist and I told them that I did not want to fight, kill or being killed.My life is in danger in Pakistan because of the presence of the Taliban and the Shia militias in my area. I am scared to go back because the fighting is continuing with the Shias and I will be detained, quartered and killed by Taliban if I am caught again.I cannot live anywhere else in Pakistan because I am a Shia. I will be recognised as a Shia by the way I pray and practice my religion. Because of this I will not able to practice my religion safely. Also, I refused to join the Shia militias to fight the Taliban.The Pakistani Sunnis and Taliban say that Shias are infidels and they declared jihad against Shias all over Pakistan.What I fear might happen if I go back to my country:I fear that if I go back to my country I will be tortured and killed because I am a Shia and a pacifist. I do not want to join the Shia militias to kill other people.Who I think will harm or mistreat me if I go back:I think that the Taliban and perhaps the Shia militias will kill me if I go backWhy I believe they will harm or mistreat me if I go back:I believe I will be killed because I am Shia and I was also involved as a volunteer with the [Charity 2], the [Charity 3] and the [Charity 1]. These solidarity activities, are not liked by the Taliban.Why I believe that the authorities in my country will not protect me if I go back:I believe that the authorities in my country will not protect me if I go back because the Pakistani Government have been unable to stop the fighting and killings for a long time. Also the Pakistani Government has been unable to penetrate the Taliban line surrounding our village so they are unable to provide us with the protection we need to survive. Also, the Pakistani government is corrupt and they are mainly Sunni. They will never protect the Shias.Other matters that I would like the Department to considerI am a Shia. Shias have been systematically eliminated by the Taliban. I fear for my life. This is all I want to say about my claims and my reasons to leave Pakistan.

Evidence

Evidence Before The Court

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 (the Department)[1] and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[1] The relevant guidelines are found in the Departmental policy manual, PAM3 Refugee and humanitarian, entitled Complementary Protection Guidelines and Refugee Law Guidelines CONSIDERATION OF CLAIMS AND EVIDENCE For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The application and the applicant's written claims are on the departmental file which is before the Tribunal. The applicant attended an interview at the Department [in] March 2013, and a recording of the interview is located on the departmental file. No further claims or submissions have been received by the Tribunal during the course of the review. In his application the applicant claimed to be a Pashtun Turi and a Shia Muslim from [a certain] area in the Upper Kurram Agency of Khyber-Pakhtunkhua Provicnein Pakistan. He claims to be a Pakistani citizen, and the Department has accepted that claim based on the available identity documentation. The applicant’s claims were set out in a statutory declaration that accompanied the application, in which he said:My parents are deceased. We are [number] siblings, [details of composition]. They all live in Parachinar and only [one sibling] and myself are single.Why I left my country:While I was working as a driver, I used to do volunteer work for the local [Charity 1], driving people to and from their head office. The Taliban did not like that. In 2008, while I was driving passengers from Parachinar to Peshawar, my car was stopped by the Taliban and I was arrested. I was held for about four hours during which time, my back was inspected. When the Taliban saw the scars in my back, they realised that I was a Shia and they slashed my back with big knives. I still have the scars from this episode. After this, I was left unconscious in the bush and some villagers picked me up and took me with them. They then asked my family to pay ransom money and after a month, my family paid a large amount and I was released. The villagers were not Taliban, they were Sunnis.At the beginning of 2012, while I was driving my [vehicle] with passengers through [a location], my vehicle was showered with bullets. [Number] of my passengers died as a consequence of the bullets and [number] were injured. I was not injured. I called the army to assist, but nobody showed up so I drove my [number] passengers, including the [dead] and the [injured] to Parachinar myself.After that episode, I received threatening calls and letters. I was asked to stop volunteering for the [Charity 1] and the [Charity 2]. Since I was also the founder of an unregistered charity called [Charity 3], we used to receive donations to assist people injured in war. The Taliban did not like my involvement with these organisations. In addition, Shia militias approached me to recruit me to fight the Taliban. I am a pacifist and I told them that I did not want to fight, kill or being killed.My life is in danger in Pakistan because of the presence of the Taliban and the Shia militias in my area. I am scared to go back because the fighting is continuing with the Shias and I will be detained, quartered and killed by Taliban if I am caught again.I cannot live anywhere else in Pakistan because I am a Shia. I will be recognised as a Shia by the way I pray and practice my religion. Because of this I will not able to practice my religion safely. Also, I refused to join the Shia militias to fight the Taliban.The Pakistani Sunnis and Taliban say that Shias are infidels and they declared jihad against Shias all over Pakistan.What I fear might happen if I go back to my country:I fear that if I go back to my country I will be tortured and killed because I am a Shia and a pacifist. I do not want to join the Shia militias to kill other people.Who I think will harm or mistreat me if I go back:I think that the Taliban and perhaps the Shia militias will kill me if I go backWhy I believe they will harm or mistreat me if I go back:I believe I will be killed because I am Shia and I was also involved as a volunteer with the [Charity 2], the [Charity 3] and the [Charity 1]. These solidarity activities, are not liked by the Taliban.Why I believe that the authorities in my country will not protect me if I go back:I believe that the authorities in my country will not protect me if I go back because the Pakistani Government have been unable to stop the fighting and killings for a long time. Also the Pakistani Government has been unable to penetrate the Taliban line surrounding our village so they are unable to provide us with the protection we need to survive. Also, the Pakistani government is corrupt and they are mainly Sunni. They will never protect the Shias.Other matters that I would like the Department to considerI am a Shia. Shias have been systematically eliminated by the Taliban. I fear for my life. This is all I want to say about my claims and my reasons to leave Pakistan.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Bruce HenryMemberATTACHMENTCountry information As noted above, the Tribunal is required to have regard to DFAT publications prepared expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent such DFAT report[2] on Shias in Pakistan states:[2] Department of Foreign Affairs and Trade, DFAT Thematic Report – Shias in Pakistan, 15 January 2016, p.152.34 There have also been numerous incidents of religious, sectarian and communal violence in Pakistan. In some cases, this violence is mutual, with different religious groups acting as belligerents. However, DFAT assesses that minority groups are disproportionately affected by sectarian violence in Pakistan (see also ‘Religion’, below). There is no evidence to suggest these groups specifically target women or children. A number of Sunni militant groups operate throughout Pakistan, including Lashkar-e Jhangvi (LeJ) and Jaish-e Mohammad (JeM). Shia militant group Sipah-e-Muhammad Pakistan (SMP) is the main perpetrator of violence against Sunnis. All of these groups are banned but continue to operate illegally in Pakistan. While Operation Zarb-e-Azb has substantially reduced the level of sectarian violence between these groups, they maintain a presence throughout Pakistan, particularly in Karachi, Quetta and parts of Punjab. According to SATP, there were 276 fatalities from sectarian violence in 2015. …4.20 Levels of generalised and sectarian violence remain lower in Punjab than other parts of Pakistan. Credible sources have told DFAT more recently Lahore has experienced a 20-25 per cent reduction in the rates of ‘crime against persons,’ including kidnapping, since the commencement of Operation Zarb-e-Azb and implementation of the National Action Plan.4.21 In 2014, there were 18 sectarian attacks in Punjab and the Islamabad Capital Territory combined, resulting in 21 deaths. According to the SATP, a total of 16 Shias died in three attacks in Punjab and the Islamabad Capital Territory in 2015. This included separate IED attacks on different Shia imambargahs in Rawalpindi on 9 January and 18 February 2015, and an attack on a group of Shias returning from a religious gathering in Rawalpindi on 16 January. There were no Shia deaths from sectarian violence in Lahore in 2015.4.1 Islamabad remains relatively safe for migrant Shia communities. According to the Turi community, for example, there has only been one attack on Turi migrants in Islamabad in the past four years: on 10 August 2013, there was an attempted suicide IED attack on a Shia imambargah in Bahra Kahu. The suicide bomber – from Punjab – was killed by guards at the imambargah while the other four perpetrators – from Sadda, Kurram Agency – were prosecuted in an anti-terrorism court in September 2015.4.22 Some Turi migrants in Islamabad have reportedly received unspecified threats from sectarian elements. According to Islamabad-based think tanks, there is a declining incidence of kidnapping for ransom incidents in Islamabad. Kidnappers have historically targeted Ahmadis and, to a lesser extent, wealthy migrants from tribal areas. …4.25 DFAT assesses that there is a moderate level of generalised violence in Balochistan. There is also a moderate level of sectarian violence - despite a decline in the number of sectarian attacks, Hazara Shias remain segregated and are a key target of militant groups.Khyber Pakhtunkhwa 4.26 The majority of the population in Khyber Pakhtunkhwa is Pashtun and predominately Sunni. The Shia population is largely concentrated in Hangu, Kohat, Peshawar and Dera Ismail Khan. Most Shias in Peshawar are long-time residents of the Old City, while many Shias in Hangu, Kohat and Dera Ismail Khan are Turi or Bangash Shias from Kurram and other parts of the FATA.4.27 Credible sources have told DFAT that sectarian attacks in Khyber Pakhtunkhwa have decreased by 60 per cent and are at their lowest level in four years. These sources also highlight a 42 per cent decline in the provincial homicide rate. Despite these trends, militants continue to target Shias in some parts of the province. This tends to be greater in areas such as Hangu and Kohat because of their proximity to tribal areas, as well as Dera Ismail Khan, while the presence sectarian groups in other areas – including the Swat Valley – is minimal. According to the SATP, 27 Shias died in four sectarian attacks in Khyber Pakhtunkhwa in2015. For example, 22 Shias died and 50 were injured during a complex attack at an imambargah in the Hayatabad area of Peshawar on 13 February 2015.4.28 DFAT understands that Shias continue to relocate to the relative safety of Peshawar from other parts of Khyber Pakhtunkhwa and the FATA. There are also options for internal relocation within Peshawar. Credible sources have reported the movement of some Shia families from parts of the Old City to the New City to distance themselves from an LeJ sleeper cell in the area, for example.4.29 In the past, there have been Sunni-Shia clashes in parts of Hangu, Kohat, Dera Ismail Khan, Kohistan and Mansehra. For example, attacks in Rawalpindi during the Moharram period in 2013 sparked sectarian tensions in Hangu and Kohat.4.30 Overall, DFAT assesses that there is a moderate degree of generalised violence and a low level of sectarian violence in Khyber Pakhtunkhwa.Federally Administered Tribal Areas (FATA)4.31 The majority of the Shia population in the FATA is concentrated in Kurram and Orakzai Agencies. Shias account for 40 per cent of the population in Kurram Agency, which is estimated to number approximately 935,000 people. Upper Kurram is predominantly Shia (approximately 80 per cent), while Central and lower Kurram are majority Sunni. Most of these Shias are from the Turi tribe, an exclusively Shia Pashtun tribe comprising approximately 500,000 people dispersed throughout Pakistan. Shias also make up approximately 40 per cent of the Bangash tribe, which populates Orakzai Agency, as well as Kohat, Hangu and other settled parts of Khyber Pakhtunkhwa – mainly Peshawar.4.32 According to the FATA Research Centre (‘FRC’), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015. FRC data indicates there were 14 security incidents in Kurram Agency from January-June 2015, mostly in lower Kurram. Most of these were IED and ambush attacks against security forces around Shabak and Thal, although there was also a failed suicide IED attack on a football match in Alizai on 6 May 2015. On 13 December 2015, however, an IED attack at a market in Parachinar killed 25 people and injured 62 others. Militant groups LeJ and Ansarul Mujahideen have both claimed responsibility for the attack. A number of media reports suggest the attack was motivated by the militants’ desire to ‘punish’ Pakistani Shias for participating in Syria’s civil war. Others have characterised the attack as an attempt to contest government control following the Pakistani military’s 12 December 2015 announcement that Operation Zarb-e-Azb has almost eliminated the insurgent presence in the Shawal Valley. Given these conflicting positions, DFAT is unable to attribute responsibility for the attack or confirm the motivations of the perpetrators. 4.33 Credible sources have told DFAT that Turi Shias have travelled to Syria to participate in the country’s civil war. These contacts have also informed DFAT that militants, including those associated with the Haqqani Network, have relocated from North Waziristan and Khyber Agency into Orakzai and central Kurram, and that these groups are possibly targeting security forces as a first step towards establishing a more permanent presence in these areas. While the 2013 ‘peace accord’ between Shia Turis and Sunni Bangash remains in place, Turi Shias are reportedly concerned about the movement of Haqqani Network militants into Kurram Agency because of their ability to create rifts between Bangash Sunnis and Turi Shias. DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015. Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.4.34 More than 3,700 families returned to their places of origin in 2014, including Parachinar and surrounding villages in upper Kurram. This represents approximately 25 per cent of those formerly displaced - most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October – November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.4.35 According to the SATP, there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight. FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.4.36 DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb. DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.State protection5.1 DFAT assesses that Pakistani authorities are broadly willing to protect Shia communities. The National Action Plan to counter terrorism seeks to combat extremism and sectarianism, while Operation Zarb-e-Azb has resulted in a significant decline in the number of sectarian attacks. During Moharram, provincial authorities and the Federal Ministry of Interior cooperate with local Shia communities to provide security for participants in Ashura processions. Security authorities have told DFAT that official security for Shia mosques and Ashura processions is provided on a case-by-case basis depending on the threat level and availability of resources. These security measures include shutting down mobile phone services and deploying police forces (plain clothed and uniformed) to patrol areas surrounding processions. The Government of Pakistan has introduced a ban on the use of loudspeakers at mosques for hate speech during periods of heightened sectarian differences such as Ramadan. Although authorities have arrested a number of people for violating this ban and have reportedly begun to register Madrassas, DFAT does not yet have sufficient information to assess the effectiveness of these measures. The Army also generally operates at a heightened state of readiness at these times.5.2 However, capacity constraints limit the federal and provincial governments’ abilities to protect the Shia community, which is large and widely dispersed. Although Pakistani authorities continue to capture and prosecute members of sectarian groups, conviction rates remain low.5.3 Shia communities frequently make provisions for their own security. This includes physical security of Shia mosques, self-protection ‘scout’ units and lines of security to search those attending Ashura processions. Internal relocation5.4 As indicated in the 15 January 2016 DFAT Country Report on Pakistan, section 15 of the Constitution guarantees freedom of movement throughout Pakistan and there are no legal impediments to relocation. This applies equally to Shias and other religious sects. Because of Pakistan’s size and diversity, internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination or violence. In many cases, there are options for members of most ethnic and religious minorities, including Shias, to relocate to areas of relative safety within Pakistan. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities. These cities also provide greater access to employment, education and health care services. For example, Turi migrants in Islamabad have told DFAT these factors were central to their decision to relocate from Kurram Agency.

Ratio Decidendi

Legal Principle Established

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