1412706 (Refugee)

[2016] AATA 3768

1412706 (Refugee) [2016] AATA 3768 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412706

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nicole Burns

DATE:11 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 11 April 2016 at 5:28pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 1 March 2016 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.

5. The issues is this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.  A summary of the relevant law is attached.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality, ethnicity and family composition

6. The delegate had no issues with the applicant’s name and claimed nationality and accepted he was a Pakistani national, as does the Tribunal.  The delegate’s decision[1] records that he provided to the Department documents including his birth certificate, marriage certificate, and domicile certificate as evidence.  The Tribunal therefore will assess the applicant’s protection claims against Pakistan as his country of nationality and receiving country.

   [1] The applicant provided a copy of the delegate’s decision to the Tribunal on review.

7. The delegate did not accept the applicant’s date of birth provided in the visa application –[Date 1] – because of discrepancies across various documents provided and his vagueness about his actual date of birth at interview, concluding therefore that the applicant was over [age] years of age (and considering his date of birth to be [Date 2]).  At the Tribunal hearing the applicant confirmed that his date of birth is [Date 1] and that he was under [age] when he arrived in Australia.  He explained that when detained (in Australia) he was not 100 per cent sure of his date of birth until he received documents from his father.  The Tribunal is not in a position to make a firm finding about the applicant’s date of birth.  However the applicant is now over [age] years of age, whether born in [Date 2] or [Date 1] and the Tribunal does not consider it necessary to address this further.

8. The Tribunal accepts, as did the delegate, that the applicant is a member of the Turi tribe and follows the Shia religion. The applicant’s identity documents indicate that he originates from [Town 1] in Kurram Agency.  The domicile certificate provided by the applicant to the Department identifies his tribe as ‘Turi’. Independent sources indicate that Kurram Agency is one of seven Federally Administered Tribal Areas (FATA) in the north-west of Pakistan, bordered on the north and west by Afghanistan.  According to Australia’s Department of Foreign Affairs and Trade (DFAT), Shias are represented across most of Pakistan’s ethnic, linguistic and tribal groups. Of these Hazaras are a predominantly Shia ethnic community and there are a range of other Shia communities in Pakistan that have tribal/ethnic identities including the Turis, Bohris, Baltis and some clans within the Bangash Pashtun tribes.[2]

   [2] DFAT Thematic Report Shias in Pakistan, 15 January 2016 at 2.9 – 2.10.

9. [A] 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 [Town 1].[3] The Tribunal accepts that in addition to identifying his name, the applicant’s identity documents identify his tribe and place of origin and that the combination of these factors, together with his usual Shia religious practices including prayer, attending the imambargah (sites of worship) and participating in Muharram (a one month mourning period) may result in him being identified throughout Pakistan as a Shia Muslim of the Turi tribe from [Town 1].

   [3] [Information deleted].

10. The Tribunal accepts the applicant’s evidence about his family composition and employment and education history.  That is the Tribunal accepts that the applicant has [siblings] who live in [Town 1] as does his parents, and a brother who lives in [Country 1].  It accepts that his father used to [be an occupation] in [Town 1] and the applicant helped his father [at work] on occasion before he departed Pakistan, as well as studying (at high school). The applicant’s father also used to run a [shop].  The applicant left Pakistan in June 2012, before he completed year [level] in school. 

11. The Tribunal accepts that the applicant is from [Town 1], in the Federally Administrated Tribal Areas (FATA) of Pakistan.   The Tribunal also accepts that the applicant’s wife currently lives with his family members in [Town 1].  The Tribunal notes in this regard that the delegate did not accept that the applicant was married, because, among other reasons, the marriage certificate he provided contains errors and inconsistencies and was not issued by the relevant authority.   However the Tribunal found the applicant’s oral evidence about his marriage to be credible and on this basis accepts that he is married as claimed.

    Refugee Assessment

12. The applicant seeks to invoke Australia’s protection obligations on the basis of claiming to fear harm on return to Pakistan because of his Shia religion and his membership of a particular social group, namely as a Turi Shia from Kurram Agency.  The applicant claims to fear the Taliban and ‘separatist’ groups such as Sipah-e-Sahaba Pakistan (SSP) and Lashkar-e-Jhangvi (LeJ), who target Shias.  He said he left Pakistan due to the fighting and violence “everywhere” in Kurram Agency from 2007 until about 2011/12. 

    Past experiences in Kurram Agency

13. The applicant has put forward a number of claims regarding violence and in some cases death experienced by some of his relatives in the past in Kurram Agency, which precipitated his decision to leave the country, as well as himself (and his father) surviving a roadside attack by the Taliban in [2010], discussed below.

14. The applicant told the Tribunal that he and his father were travelling in a convoy from [Town 1] to Peshawar in [2010] [with] his father.  However their convoy was fired [upon] [around] 30 minutes’ drive from [Town 1]. The applicant’s driver drove away from the scene, and then stopped at a military base [for] around two hours before joining a bigger convoy to Peshawar.  At Peshawar they found out that of the 25 cars in the convoy (with military vehicles in the front, back and middle), all but three vehicles had escaped.  Some people in those vehicles were killed (as well as a couple of guards) and others were kidnapped.  When asked what happened to those who were kidnapped the applicant said some were killed and others set free after a ransom was paid.  When asked who was behind the attack, the applicant replied “Taliban and Sunnis”.  When asked who actually fired the shots (at the convoy) the applicant said both are one, with Sunnis supporting and looking after the Taliban.  He said the people in the convoy were all from his village, and all Shias.  At hearing the applicant provided to the Tribunal a copy of a photograph and text in Urdu, which he said was handwritten notes from his father about the incident.  The photograph is purportedly of one of the villagers who died.

15. The Tribunal has some concerns about the applicant’s claims to have been travelling in a convoy from his home town to Peshawar in [2010] which was attacked resulting in the death of people from his village and kidnapping of others, by – the applicant claims – the Taliban and Sunnis.  The Tribunal notes that in his written claims[4] to the Department the applicant stated that he was travelling in a convoy of approximately 25 cars [and] three cars were left behind to pick up others and then catch up and they were all bombed with everyone being killed or being taken captive. However he told the Tribunal that the front of the convoy was fired upon by people in the surrounding mountains, and made no mention of being bombed. This may have been a translation problem however and the Tribunal is willing to give the applicant the benefit of the doubt and accepts that his vehicle (and others) was fired upon by the Taliban or Sunnis when travelling to Peshawar in [2010]. However the Tribunal considers this was part of the generalised violence that affected many other Shia Muslims in these areas at that time [and] does not accept that the applicant or his father were specifically targeted in the attack.

    [4] Dated 3 December 2012

16. The applicant claims the main incidents that led to his decision to leave Pakistan were the deaths of two of his [relatives], [Mr A] and [Mr B].  He told the Tribunal that [Mr A] died when a mortar fell on his home (in [Town 1]) in 2007.  Two other [relatives] were wounded in the attack.  [Mr B], who was a driver, was killed when a bomb exploded in 2010.  [Mr B]’s wife told the applicant that [Mr B] had received a telephone call to pick up a passenger and the bomb exploded at the [destination], which makes her believe he was specifically targeted.  When asked at hearing why [Mr B] was targeted, the applicant said because he was from a high-profile family, given his ([Mr B]’s) father was a village elder.  When asked if [Mr B]’s father was ever targeted by the Taliban, the applicant replied that they look at the situation and if they get a chance to get someone they will.  He said that they (the Taliban) had a chance with [Mr B]. 

17. The Tribunal notes the applicant mentions that his [relatives] were killed “during the bomb and missile attacks” in his statutory declaration to the Department but provides no further details, including that one of his [relative]’s – [Mr B] – was specifically targeted by the Taliban or other extremists.  At the hearing the applicant said at that time he did not provide details, noting that he only answered the specific questions and was quite nervous.  Noting that country information indicates that the Taliban and other militant groups were active during this period the Tribunal  is willing to accept that two of the applicant’s [relatives] were killed in the past – one due to a mortar attack in 2007 and the other as a result of a bomb blast in 2010 in Kurram Agency.  However, the Tribunal does not accept that [Mr B] was specifically targeted by the Taliban as speculated by the applicant, because of the late introduction of this aspect of his claims.  The Tribunal is of the view that these attacks were part of the generalised violence that affected many other Shia Muslims in these areas at that time, not a personal attack directed at either of the applicant’s [relatives].  

18. At the hearing the applicant said his brother who currently lives in [Country 1], left Kurram Agency around 2007 or 2008 because of the fighting and violence and because there was no future.  He has visited home probably once or twice according to the applicant since he left Kurram Agency.  He did not experience any problems when he did visit home, the applicant said because his father made sure he had a safe passage. The Tribunal accepts that the applicant’s brother lives in [Country 1] and left Kurram Agency to do so around 2007 or 2008 because of the violence and fighting in the region.  However it has not been claimed that the applicant’s brother was specifically targeted in the sectarian and generalised violence that affected the region from 2007 onwards.   

19. At the hearing the applicant claimed that [his] [relatives] are village elders, which contributes to his fears on return.  Asked why, the applicant said that ‘they’ – referring to the Taliban, SSP, and LeJ – have a lot of information (about Shias), are well prepared and know about them (from Sunnis who used to live nearby and have a vendetta against them).  He said he is fearful they might pick him up from the airport.  The Tribunal notes that this was the first time the applicant raised this claim.  It also found his oral evidence about his [relatives] and his fears on the basis that they are village elders to be vague and lacking in details.  For instance he said his [relatives] are ‘high-profile’ village elders and ‘things’ are ongoing on a daily basis -  that is people are kidnapped, tortured and killed on a daily basis – but did not elaborate or provide any specific examples.   For these reasons the Tribunal does not accept that the applicant has any [relatives] who are village elders as claimed and is not satisfied that he faces a real chance of serious harm from the Taliban or others on return to Kurram Agency on this basis. 

20. At the hearing the applicant said a [relative] of his fled Pakistan shortly after him and has sought protection in Australia (he thought he had been successful).  He said his [relative] left for the same reasons the applicant did and his [relative]’s father was one of the elders.  As the Tribunal does not accept that the applicant has [relatives] who are elders, it follows that the Tribunal also does not accept this claim in relation to the applicant’s [relative].

21. At hearing the applicant claimed that about 20 days prior (to the hearing) his [relative]’s [relative] was kidnapped from a hospital bed in Islamabad and remains missing.  The Tribunal found the applicant’s oral evidence about this alleged incident was vague, evasive and at times implausible and does not accept his claims in this respect.  For instance when asked about his relatives efforts to locate the missing relative, he did not answer.  When pressed he said they first asked everyone in the hospital, then reported the matter to the police and asked people but to no avail.  His answer was general and lacked details.  When asked who he thinks may have kidnapped his relative and why, the applicant answered in general terms that it was one of those groups he had referred to earlier, that is the Taliban, SSP or LeJ, but he is not 100 per cent sure who or their motive.  He said no ransom has been requested to date.

22. At the hearing the applicant claimed that the Taliban dropped letters to his extended family members and made anonymous phone calls in the past.  He said he did not receive the letters or phone calls because he was young and studying at school.   The Tribunal notes that the applicant makes no mention of his extended family members receiving threatening letters or phone calls from the Taliban in his written statement to the Department.  He did state that the Taliban had sent threatening letters to people in his village before, but not to his extended family members.   The Taliban may have sent letters to some people in his village in the past, but given the late introduction of this claim the Tribunal does not accept that the applicant’s extended family members have received threatening phone calls or letters from the Taliban in the past.

23. For these reasons, whilst the Tribunal accepts that there has been a history of sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counter-insurgency campaigns, the Tribunal does not accept that the applicant has ever been seriously harmed in the past in Kurram Agency as a result of such violence, or specifically targeted by the Taliban, LeJ, SSP or any other extremist group.  It accepts that two of his [relatives] were killed in a bomb blast and mortar attack in 2007 and 2010, but is of the view that the attacks took place in the context of sectarian and militant violence in Kurram Agency and the Tribunal does not accept the applicants’ cousins were specifically targeted by the Taliban or anyone else in relation to those attacks. Also, whilst the Tribunal accepts that the applicant and his father were part of a convoy that was fired upon by the Taliban in [2010], it has not accepted that they were specifically targeted.  Based on the country information discussed below, the Tribunal does not accept, given the change in conditions in [Town 1] since these incidences in 2007 and 2010, that there is a real chance that the applicant would be seriously harmed in any similar random generalised violence in the reasonably foreseeable future.

    Fear of harm in Kurram Agency in the foreseeable future

24. Taking into account these findings and what it accepts of the applicant’s profile the Tribunal has gone on to consider if there is a real chance that the applicant would face serious harm on the basis of his Shia religion, and/or membership of a particular social group of ‘Turi Shia from Kurram Agency’ if he were to return to his home village in Kurram Agency now or in the reasonably foreseeable future.

25. In her written submission to the Tribunal the representative refers to country information from a variety of sources which indicate, it is submitted, that sectarian attacks continue to occur throughout Pakistan.  She submits that Shia Muslims are regularly identified as targets by Sunni Muslim extremists and fundamentalist groups in Pakistan and references a number of articles and other country information form a variety of sources to support her contention in this regard.  She submits further that Turi Shias from Kurram Agency are considered enemies of the Taliban given their work against the Taliban to prevent them travelling through tribal agencies of Pakistan. As a result, the Taliban have regularly targeted the Shia community in the region and the representative submits that it is plausible that the applicant would be easily identifiable as a Shia Turi from [Town 1] due to his prayer rituals, name and identity documents and would be at risk of serious harm.  The representative also referred to an excerpt from the International Institute for Strategic Studies (IISS) Armed Conflict Database which highlighted that sectarian violence in the Kurram Agency continues to escalate.  The Tribunal notes that the period of the reported incidents in the IISS database is January to August 2012, which is somewhat out of date. 

26. At the Tribunal hearing the applicant was asked about his fears of returning to Kurram Agency on the basis of his Turi tribe membership.  He said that as they live closer and have borders with Sunnis, it makes them vulnerable to being identified by former Sunni neighbours in other parts of Pakistan. 

27. The Tribunal has considered the submissions and the independent evidence (including that cited below as discussed with the applicant at the hearing) as well as the concerns articulated by the applicant regarding the situation in his home area of Kurram Agency.

28. Country information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban (primarily Turis).  Reports indicate that in the first quarter of 2012 Shias continued to be targeted in Kurram Agency, with 30 security incidents in Kurram including 15 bomb attacks.[5] In [2013] multiple bomb blasts in [Town 1] were reported to have killed around [number] people and injured over [number].[6]  However, country information that follows indicates that the situation has improved in the FATA, including Kurram Agency.

    [5] FATA Research Centre 2012, Security Report First Quarter 2012, p.12.

    [6] [Information deleted].

1. The FATA Research Centre (FRC) said in its Annual Security Report 2014 that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014 and that a total of two incidents, one bomb blast and one target killing, were recorded during the reporting period, killing three people and injuring one.  The bomb blast was a roadside bomb and the killing was of a tribal elder on his way to Sadda Bazaar from Central Kurram Agency.[7]  A UNHCR report on a protection cluster mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram.[8]

   [7] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, p. 46.  The FATA Research Centre describes itself as a non-partisan, non-political and non-governmental research organization based in Islamabad. [Information deleted].

   [8] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.

2. More recently, in its Annual Security Report 2015 the FRC stated that the year marked a significant decline in terrorism-related incidents in the tribal areas of FATA.  According to that report, militancy and counter militancy incidents were recorded from all the seven agencies of FATA in 2015, and the year remained turbulent with armed conflict between non state militant actors and law enforcement and security agents remained at its peak.  However the report also noted that militant violence declined by 40% compared to 2014.  It is also reported that out of the total casualties in FATA in 2015, almost 65% were militants.  From a security point of view, the FRC reported that the most turbulent area during the outgoing quarter (of 2015) in FATA remained North Waziristan and Khyber Agencies where military operations against local militants is ongoing.  With respect to Kurram Agency specifically the FRC reported as follows:

   Kurram Agency after remaining a peaceful in the year 2014, witnessed a surge in militancy related incidents in during the first quarter of 2015. The graph above illustrate [not reproduced] that 17 militancy incidents resulted in 93 causalities; 62 killings and 31 injuries. Shabak area in lower Kurram Agency remained the notably disturbed portion of the agency in this quarter. This area is densely forest populated and lies adjacent to North Waziristan Agency where a military operation is still underway. It is assumed that due to the ongoing military operation the militants have moved into the region. Mostly military convoys were targeted through IEDs and ambush attacks. In mid of February dozens of militants from Afghanistan attacked security picket in Shabak locality and intense firing took place between Pakistani security forces and the attackers.

   ...

   In the second quarter of 2015 a nose dive in militancy incidents were recorded in Kurram Agency. Total of seven causalities, including four deaths and three injured, were resulted in three security related incidents; two militants were killed while two civilians lost their lives and 2 others got injured. Similarly, one security personal was also injured in a terrorist attack.

   Although military operations in the past have largely dismantled militant networks in Kurram however, militants under the banner of TTP are still operational in different areas of the central Kurram. For instance, two militants of the proscribed Tehrik‐i‐Taliban Pakistan (TTP) were killed in a clash with gunmen in the Tor Thoot area in the central parts of Kurram Agency while in another incident two armed groups traded gunfire in the hilly area of Tor Toot in which two TTP militants, including commander Mullakhel, were killed. However, none of the militant outfits claimed responsibility for the attack.

   In the last two quarters of 2015 from July to December 2015, Kurram Agency witnessed a surge in militant activities. A total of 6 militancy and counter militancy incidents were recorded, around 50 % higher the previous quarter from April to June 2015 in which resulted in 28 causalities; 20 killings and 8 injuries. Likewise, 35 people were killed while 71 others were critically wounded in 9 incidents of militancy and counter militancy, 33 % higher than the 3rd quarter. The areas remained turbulent during the current quarter of 2015 included Spar Kot and ToraWarai in Central Kurram, Sarka area, Bagan area, Yaqoobi village in Lower Kurram agency[9].

   [9] FATA Research Centre, Annual Security Report 2015

3. In its 2015 ‘FATA Assessment’ report the South Asia 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 North Waziristan Agency 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 security forces 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 government’s 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[10].

   [10] SATP ‘FATA Assessment 2015’

4. Other sources confirm that the overall security situation in Pakistan has improved.  For example, the UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation[11] reports that the Austrian fact Finding Mission to Pakistan undertaken in July 2015 found an overall improved security situation since its previous mission in 2013. The 2014 report of the Pakistani Institute for Peace Studies (PIPS), indicated a 30% decrease in the number of terrorist attacks carried out by militant, nationalist/insurgent and violent sectarian groups in Pakistan in 2014 compared to 2013[12].

   [11] UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015

   [12] European Asylum Support Office,  Country of Origin Information Report Pakistan Country Overview, at p53 citing PIPS, 2014, Pakistan Security Report, 2015, p. 7.

5. The most recent DFAT advice in relation to Shias in Pakistan indicates that the security situation in Kurram Agency has improved.  Specifically in the DFAT report on Shias in Pakistan dated 15 January 2016 it was stated that:

   ·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.

   • DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015.
   • Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.
   • More than 3,700 families returned to their places of origin in 2014 [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.
   • 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.
   • 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[13].

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

6. At hearing the applicant said incidents happen but sometimes the media do not mention it. As an example he said a friend told him about the ‘firing’ two to three days prior in [an] area in [Town 1] which resulted in a couple of deaths.  The applicant agreed that the Thal-Parachinar road is currently open, but said it is a temporary fix, noting that since 2007 it is open for a couple of months then the (conflict) starts again.  He said that his [relative] told him that ‘they’ had abducted people from a vehicle travelling on the road near [location].  In terms of the army’s presence on the road, the applicant said that the Taliban have kidnapped people in front of the army before.  With respect to the return of some IDPS to Kurram Agency, the applicant said at the same time some people are leaving the area, including those seeking refuge in [in the West] from near his home area.  The applicant also mentioned an attack on a university in lower Kurram Agency a couple of months prior to the hearing in which many people were purportedly killed.  He emphasised that the situation is only temporarily peaceful, people are afraid to move around freely and the media and reports portray information that is completely different to living there.

7. The Tribunal has had regard to the applicant’s submission that reporting of violence in Kurram Agency by the media is limited.  However the Tribunal does not share this view, noting that there is wide-ranging and comprehensive reporting of the incidents that occur in Kurram Agency, some of which have been referred to above and contained in the representative’s written submission to the Tribunal.

8. The Tribunal gave a copy of the DFAT reports in question to the representative at the hearing, on request.  In a post hearing submission to the Tribunal the representative made the following key submissions in relation to relevant information contained in those reports:

   ·There is still a real chance the applicant would face Convention related harm upon return to Pakistan.

   ·The situation in Pakistan is fluid and changing and therefore a short term decrease in fatalities cannot be viewed as indicative of a meaningful change for religious and ethnic minorities in Pakistan, especially given the authorities continue to struggle to govern the country and prevent extremist groups from committing atrocities. 

   ·The situation in Afghanistan needs to be taken into account when assessing the security situation in the applicant’s home area given the area borders Afghanistan. The fact that the foreign forces are departing Afghanistan makes it highly probable extremist groups that operate both in Afghanistan and Pakistan will increase their power bases in the region.

   ·While reports may indicate that the amount of deaths has decreased due to sectarian violence, the overall fatalities remain high and as such religious minorities face ongoing issues in Pakistan.

   ·Overall the DFAT reports support the applicant’s protection claims, noting in particular that the reports assess that:

   oMinority groups are disproportionately affected by sectarian violence in Pakistan

   oDespite the counter terrorism operation resulting in many arrests, the majority of those arrested are not prosecuted (and therefore no meaningful change is being created in Pakistan)

   oAttacks against Shia Muslims continue, with Shias representing a higher proportion of those attacked and killed

   oAttacks against Shia places of worship continue to occur with many deaths stemming from the same

   oThe Haqqani network have relocated from North Waziristan and Khyber Agency into Orakzai and central Kurram, which is reportedly a concern for Turi Shias because of their ability to create rifts between Bangash Sunnis and Turi Shias.

9. The Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency where the applicant is from, as detailed in the country information discussed including as set out in the representative’s submissions.  This includes an IED attack [on] 13 December 2015 which killed at least [number] people and over [number] injured,[14] as submitted. Nonetheless the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre.  In this context the Tribunal considers it would be premature to conclude that this attack on 13 December 2015 - the first such attack in [Town 1] for almost two and a half years - marks a definite change in the security situation.  The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in [Town 1], or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.  Having regard to all of the evidence before it concerning the security situation in [Town 1] and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in [Town 1] in the reasonably foreseeable future.

   [14][Information deleted].

10. The Tribunal accepts DFAT’s assessment regarding the risk of generalised violence in the FATA and accepts that there is some level of risk to the applicant in the context of generalised violence.  However it finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm based on his Shia religion, his membership of a particular social group of Turi tribe from Kurram Agency or any other Convention reason.

11. In his written statement to the Department the applicant stated that during the time of the war, which was close to their area, they had to run and hide many times and during one of those times a missile exploded near them which terrified them.  The Tribunal is willing to accept that a missile exploded near the applicant one time in the past but notes that the applicant has not put forward any specific claim to fear persecution on this basis or elaborated further and the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on this basis on return to Pakistan.

12. 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, however that overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards.  For reasons set out above, whilst the Tribunal accepts that the applicant is a Turi Shia from [Town 1], it does not accept that he has been specifically targeted or harmed by the Taliban or other Sunni extremists in the past, nor have any of his immediate family members despite the latter remaining in the area.  At hearing when the Tribunal noted that it appeared that nothing had happened to his father or [siblings] who remain in the area, the applicant said that they have been quite lucky in that sense, that as there is violence all around them they have become more experienced and adapted to living their lives, and they also stay away from certain places and are cautious.  The Tribunal notes that in his oral evidence the applicant said that one of his brothers who had been studying in Lahore from around 2010, left his studies and returned to [Town 1] because of concerns about kidnapping and disappearance of Shias there in Lahore, which does not indicate that he was particularly fearful bout returning to Kurram Agency.  The Tribunal has accepted that two of the applicant’s [relatives] have been killed – in 2007 and 2010 – and that he and his father were fired upon (along with others) by the Taliban in 2010, but does not accept that either of his [relatives]or himself or his father were specifically targeted by the Taliban or other extremists.  For these reasons when combined, the Tribunal finds remote the chance the applicant would be seriously harmed by the Taliban, other Sunni extremist groups, former Sunni neighbours or anyone else for reasons of his Shia religion or membership of a particular social group of ‘Turi Shia from Kurram Agency’ on return to Kurram Agency.   The Tribunal therefore finds that the applicant does not face a real chance of serious harm for a Convention reason on return to Kurram Agency now or in the reasonably foreseeable future. 

13. The Tribunal is also satisfied on the evidence before it that the applicant would be able to practice his (Shia) religion on return to Kurram Agency, as he had in the past.  At the hearing the applicant said he used to pray on a daily basis and would go out in public for big gatherings.  When asked, he said he was never prevented from practising his religion in Kurram Agency because most of the people there are Shias.

    Conclusion – Refugee grounds

14. Considering the applicant’s claims both individually and cumulatively, as a Turi Shia from Kurram Agency  the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Shia religion or membership of a particular social group of ‘Turi Shia 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

15. 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).

16. 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.

1. It is submitted on the applicant’s behalf that there are substantial grounds for believing that he would face a real risk of the following types of significant harm if removed to Pakistan:

   ·Arbitrary deprivation of life by the Taliban or other associated extremist groups, who are widespread throughout the country, who have regained their stronghold and continue to dominate many areas within the country, often with a blind eye or complicity from the authorities;

   ·Torture by extremist groups who operate in the applicant’s area and throughout the country, known to subject religious minorities to torture to punish them for not following their faith;

   ·Cruel and inhuman treatment or punishment by extremist groups – both mental and physical – against those who oppose them and members of religious minorities, as is the applicant; and

   ·Degrading treatment or punishment by the Taliban and members of the Sunni majority as a Shia which is considered less superior. 

2. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will face serious harm from the Taliban or extremists or Sunnis in Pakistan for reasons of his Shia religion, membership of a particular social group of ‘Turi Shia from Kurram Agency’ or any other Convention reason.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[15]  It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Taliban or Sunni extremists or any other group as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan for these reasons.

   [15] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

3. On the material before it, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

   CONCLUSION

4. 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).

5. 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).

6. 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

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

   Nicole Burns
   Member

   
   

   Attachment – Summary of Relevant Law

   The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.