1416692 (Refugee) - [2016] AATA 3873

1416692 (Refugee) [2016] AATA 3873 (12 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416692
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Paul Windsor
DATE:12 May 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 May 2016 at 3:20pm
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] September 2014.
The applicant applied to the Tribunal for review of this decision on 8 October 2014.
The applicant appeared before the Tribunal on 11 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from[two witnesses]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CRITERIA FOR A PROTECTION VISA
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’).
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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
The applicant claims to be a citizen of Pakistan who was born in [Quetta] in Balochistan province in Pakistan on [date]. According to his Protection visa application[1] he is of the Hazara ethnic group and is a Shia Muslim, and speaks Hazaragi, Urdu and Pashtu. He departed Pakistan legally travelling on his original passport from Karachi airport to [Country 1], departing [in] January 2012. He indicates that his passport was taken by a people smuggler in [Country 1] and that he entered Australia as an offshore entry person, travelling via [another country] and arriving by boat without a visa in June 2012.
[1] See folios 58-65 of Departmental file [number].
Summary of claims from the Protection visa application
The applicant’s claims were set out in a Statutory Declaration of 20 November 2012 and attached supporting documents[2] included with his Protection visa application. His claims can be summarised as follows:
[2] See folios 43-57 of Departmental file [number].
·He lived his entire life on [Location 1], [in] the city of Quetta in Pakistan. He is a Hazara and a Shia Muslim and there is a very large population of Hazaras living where he lived. He had [siblings] but one of his [siblings] is now deceased.
·He sustained [an] injury when very young which left him with a permanent disability ([details deleted]). He was supported by his brothers [Mr A] and [Mr B]. For many years his family did not want him to work because of his disability but 10 years ago he said he wanted to work and started working (unpaid) at [a] store, which was run by his brothers [Mr A] and [Mr B].
·The situation for Hazaras in Quetta got worse over the years and Hazara Shias are now being killed almost every day.
·Around [October] 2009 his brother [Mr A] was killed by a gunman while he was working at the store. The applicant was at the mosque at the time and his brother [Mr B] was at home. They believe [Mr A] was killed by Lashkar-e-Jhangvi (LeJ) as they are the group who are killing Hazaras in Quetta.
·[Mr A] had not mentioned receiving threats before he was killed.
·The police did not investigate the killing or take any action. They just wrote a First Information Report (FIR) stating that [Mr A] was killed by an unknown killer. The local police are not supported by the Government, who do not want to help Hazaras, and are not powerful enough to do any investigation.
·The applicant and [Mr B] continued to run the shop for a time but after they reopened they started to receive lots of threatening calls. The callers would say ‘we have killed one of your brothers and we are going to kill you all’. It was clear these calls were from LeJ. Sometimes they would call on the shop phone, others times on the mobile phones of family members. They always spoke Urdu.
·In April 2011 they felt so threatened they decided to close the shop down and stayed at home. They thought if they closed the shop LeJ would stop threatening them but the calls kept coming to all members of the family, and actually increased in frequency.
·LeJ wrote a letter of threat to his [relative] [Mr C], who was a [police] officer. He had a body guard before the threats. His [relative] lodged an FIR but the police did not do anything to protect him. His [relative]’s friend who is also a [police] officer wrote his [relative] a letter warning him to be careful. Because his [relative] had lodged an FIR other family members could not lodge further FIRs about the threats they were receiving.
·The applicant decided to come to Australia to seek asylum. He fears he will be captured, subjected to degrading, cruel and inhuman treatment and killed if he is forced to return to Pakistan. He fears he will be harmed by LeJ, Sepah Seba, and other affiliated militant groups. He will be harmed because of his religion as a Shia Muslim and because of his Hazara ethnicity. He is physically identifiable as a member of the Hazara race. He will also be harmed because he was a Hazara Shia shop-owner. LeJ and Sepah Seba do not believe that Hazaras and Shia Muslims should be in Pakistan and will do anything to destroy his community and kill them. He will also be killed because he is a member of his brother’s family and his brother was killed because he was a Shia Muslim and a Hazara.
·If he returns to Pakistan as a failed asylum seeker he fears that he will be harmed and even killed because he will be accused of being a supporter of the West. He also fears that his family will be harmed.
·The authorities will not protect him. They are not capable of protecting him and are unwilling to reduce the risk of harm that he faces from LeJ and Sepah Seba that systematically persecute and discriminate against Hazaras. The police would not even protect his brother and told him to leave the police force. They are not willing to protect their own members so will not bother to protect him.
Statement lodged with the review application
The applicant’s representative submitted a statement dated 8 October 2014 in support of the review application. The statement questions ‘arguably erroneous’ ‘assumptions made by the delegate’ and clarifies some of the claims made by the applicant, including that:
·The shop was closed for about [number] days after the incident in October 2009 where the applicant’s brother [Mr A] was killed.
·The shop was reopened by the applicant’s brother [Mr B] as it was their main source of livelihood.
·Threatening calls including death threats continued to be made by LeJ to the applicant, his brothers, and other members of the family, in Urdu and at times in Pashtu. The threats were made so regularly that it caused much fear and anxiety to the applicant and his siblings.
·As a precautionary measure they modified their schedules in operating the shop, varying opening and closing times daily.
·Despite this, they continued to receive threats. Proof of this is that a threat letter was sent to the Police Station [where] the applicant’s [relative] formerly worked as a police officer. This letter caused much fear and anxiety to the applicant, taking into account his physical condition.
·The repeated threats caused so much stress to the applicant, his brothers and other family members that they decided to close the shop in April 2011.
·The applicant did not attempt to relocate to other parts of Pakistan because the anti-Shiite militant groups operate not only in Quetta but in other parts of Pakistan as well and have a large and powerful network. Hazara Shiites are not safe in Pakistan because anti-Shiite violence continues to persist.
·The threats have also caused significant economic hardship. The closure of the shop has affected the applicant’s capacity to subsist as he has no other means to support himself.
·If the applicant is removed from Australia, there is a real chance he will suffer significant harm at the hands of anti-Shiite militant group that has been targeting the applicant and his siblings.
Evidence from the hearing of 11 May 2016
At the hearing the Tribunal spoke with the applicant and two witnesses nominated by the [applicant]. The applicant’s representative did not attend the hearing.
The applicant indicated that his mother and surviving [siblings] all continue to reside in the family home in Quetta. His father is deceased. All of his siblings are married. He indicated that his brother [Mr B] does some jobs [‘around’]. The applicant indicated that [Mr B] makes enough money from this to cover daily expenses. He indicated that his [relative][Mr C], who is a retired [police] [officer], receives a pension. He indicated that his brother [Mr D] lives part-time in Islamabad and part-time in Quetta, and that he has a [business] in Islamabad. The applicant commented that his brother rents a house in Islamabad and uses a room in that house as an office. [Details of business deleted].
The applicant advised that he had married [someone] in Australia about one to one and a half years ago. He said this woman is a Hazara Shia from Afghanistan and is an Australian permanent resident.
The applicant confirmed that he had not undertaken any work in Pakistan other than the work he did in his brothers’ shop. He said it was a [store] that sold [products] and that he served the customers. He said that he had not worked in Australia but had been supported through a government funded assistance scheme.
The applicant told the Tribunal that he came to Australia in 2012 because there was no security in Pakistan. He said the situation went bad from around 2001, because of the activities of LeJ. When asked whether his family had experienced any particular problems before October 2009 he indicated that they had not. He chose Australia because friends from Pakistan had already travelled to Australia and told him positive things about Australia. [One relative] came with him.
He was not aware of any threats to his brother [Mr A] before the shooting in 2009. He had left the shop at around 5:30 pm to go to the mosque with his [relative] and when they found out about the shooting his brother [Mr A] had already been taken to the hospital. He heard that there had been two people on a motorbike and one had shot his brother and that they also shot [another person] in another street. His brother died later that evening and the other person died some time later.
The Tribunal asked the applicant whether there were other incidents at that time. He said there were but the frequency of incidents varied, sometimes it was a few days between incidents, other times a week, fortnight or month.
The Tribunal asked the applicant about the comment in his statement that the police did not investigate the killing, asking him why this was the case when his [relative] was a [police] officer. He commented that his [relative] could not do anything as the perpetrators are very hard to find and that no-one is ever arrested for these crimes. When asked if the police supported the militants the applicant commented that while his [relative] did not, some police including senior police did.
The applicant said that they started getting threats when they reopened the shop. These came both to the landline at the shop and to their mobile phones. When the Tribunal asked the applicant why they kept the shop open until April 2011 in the face of these threats, he commented that they had a guard, armed with an AK-47, provided by the police and they trusted in God. The applicant said the guard was only at the shop and the Tribunal asked the applicant if they would have been vulnerable to attack while travelling to and from the shop or when they were at home. He replied that they varied their travel route and commented that no-one has been shot where they live in [Location 1], it has always been in the bazaar. After they closed the shop they stayed at home in [Location 1].
The Tribunal asked the applicant why he thought the threats increased once they closed the shop. He replied that the militant’s intention was to kill them and that their family was the focus because the militants had targeted his brother and now would ‘follow’ other family members. He said his [relative] who was in the police was sent a threat letter. He does not have a copy of this letter as it was kept by the police. The Tribunal asked the applicant if his [relative] was retired when this letter was sent, as the letter the applicant provided from the [Police] [Office], dated [January] 2012, is addressed to his [relative] as [position title] Rtd. The applicant responded that he was not sure if his [relative] was retired at that stage and that, while his [relative] retired in 2012, he was not sure what month.
The Tribunal asked the applicant why other family members did not leave Quetta if they were continuing to receive death threats. He replied that target killings happen all over Pakistan. The Tribunal asked if family members were still getting threats now. The applicant said that he doesn’t know if they are still getting threats. He commented that he speaks with his brothers but they do not tell him because they don’t want him to get more worried. The Tribunal commented that it has been a long time from October 2009 until May 2016 and asked the applicant why he thought if his family were being targeted there had been no more incidents involving family members since 2009. He replied that his family members restricted their movements and kept to [Location 1]. The Tribunal asked the applicant about his brother who is working in Islamabad. The applicant commented that his brother travels to Islamabad by air and that when he travels to the airfield he goes with others and they travel through the cantonment area which is safe.
The Tribunal discussed a range of country information with the applicant regarding the security situation in Pakistan generally, in Quetta, and in other parts of Pakistan including Karachi, Lahore and Islamabad; and the situation facing returned failed asylum seekers from the West. The Tribunal also asked the applicant to comment on whether relocation to Islamabad might be an option for him. The applicant replied that he was concerned that the Federal Investigative Agency (FIA) would create a lot of problems for him because they regularly stop people at the airports and seek bribes. He commented that the security situation in Quetta is not good and the Hazara Shias are restricted to two areas and it is very difficult to move to different places. He said that a Punjabi Shia had been killed in Quetta a week ago. He commented that Islamabad is also a place where they are restricted. If they go outside that area they are targeted.
The applicant’s witnesses indicated that they knew the applicant from Quetta. One witness said that the applicant was from a very well-known family in Quetta because of his [relative]’s role with the police. He indicated that, while the incident occurred after he left Pakistan, he could confirm that the applicant’s brother was killed at the shop and that LeJ were responsible. The second witness said that he had known the applicant for about 10 years and that he had been in Quetta until the end of 2009. He said that he was a Hazara refugee from Afghanistan and that the applicant’s family were a very good family who helped the refugees from Afghanistan. He said that he was working nearby as [occupation] on the day that the applicant’s brother was killed.
During the hearing the applicant produced a handwritten (untranslated) document[3] which he said was the FIR lodged by his [relative] [Mr C] regarding the threat made against him, and a handwritten (untranslated) document[4] which he said was advice regarding the armed guard police provided to guard their shop after his brother [Mr A] was killed. The Tribunal made photocopies of these documents. The applicant also provided a USB memory stick which he said contained downloaded images from the internet regarding his brother’s death. Copies of these images[5] have been made and placed on file.
[3] See folios 46-47 of Tribunal file 1416692.
[4] See folio 48 of Tribunal file 1416692.
[5] See folios 41-45 of Tribunal file 1416692.
Findings and reasons
The issues in this review are whether there is a real chance that, if the applicant returns to Pakistan, he 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 the applicant will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Delegate’s decision
The decision record of the delegate of the Minister for Immigration and Border Protection[6], provided to the Tribunal by the applicant, indicates that the delegate accepted that the applicant is a citizen of Pakistan. The delegate found that, while Convention based violence against Shiites is persistent and widespread in Pakistan, and particularly in a number of defined locations including Quetta, considering the applicant’s person circumstances and the number of recorded incidents of sectarian violence relative to the total Shiite population of Pakistan, the delegate was not satisfied that there is a real chance of the applicant being persecuted for the Convention reasons of race or religion. The delegate also concluded that there was no basis for finding that the applicant would be subject to potential serious harm on account of having been in a western country, or having been refused asylum in a western country. The delegate also was not satisfied that there were 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 the applicant will be subject to significant harm.
Applicant’s identity
[6] See folios 1-10 of Tribunal file 1416692.
On the basis of the identity documents provided by the applicant to the department[7] and noting the careful analysis by the delegate[8] in relation to this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be. The Tribunal accepts that Pakistan is the applicant’s country of nationality for Convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.
Claims to be at risk of harm in Quetta
[7] See folios 48-51 of Departmental [file].
[8] See folios 9 and 10 of Tribunal file 1416692
Based on all the evidence provided by the applicant and the supporting evidence by his two witnesses, the Tribunal accepts that the applicant is a Hazara Shia from Quetta. Country advice from DFAT[9] indicates that Shias are represented across most of Pakistan’s ethnic, linguistic and tribal groups and that Hazaras are a predominantly Shia ethnic group. Of an estimated up to 900,000 Hazaras in Pakistan, approximately 700,000 live in and around Quetta, mostly in their own communities in Hazara Town (also known as Brewery Road) and [in Location 1] (where the applicant’s family lives). The Tribunal accepts that the applicant’s brother [Mr A] was shot and killed by militants, mostly likely from LeJ, in October 2009, while working at the [store], which he ran along with the applicant’s brother [Mr B] and at which the applicant also worked on a non-paid basis. The Tribunal accepts that the applicant’s [relative] [Mr C] was an [officer] of Balochistan Police.
[9] DFAT Thematic report, Shias in Pakistan, 15 January 2016.
The Tribunal accepts as plausible the applicant’s claims that when he and his brother [Mr B] reopened the [Store] around [number] days after [Mr A]’s murder, they started receiving threats from LeJ. The Tribunal does not accept, however, the applicant’s claims that the police did nothing to protect them, noting that, while not referred to in the applicant’s earlier statement of 20 November 2012 or in his representative’s statement of 8 October 2014, the applicant advised the Tribunal at the hearing that police provided a guard armed with an AK-47 rifle to guard their shop. The applicant produced an untranslated document dated [December] 2012 which he said referred to the guarding arrangement. The applicant also advised that his [relative] [Mr C] had a bodyguard. Country information from DFAT[10] indicates that, broadly, DFAT assesses that there is a willingness by Pakistani authorities to protect Shia communities. It also indicates that credible sources have told DFAT that security forces continue to escort Hazaras travelling to and from their workplaces in Quetta. While the Tribunal accepts that police may not have investigated [Mr A]’s death, having concluded that it was a terrorist incident by LeJ and that there was little chance of catching the perpetrator, the Tribunal does not accepts that the applicant or his family members were denied such police assistance or protection as could reasonably be provided in the circumstances.
[10] DFAT Thematic report, Shias in Pakistan, 15 January 2016.
The applicant claims that once they decided to close the shop in April 2011, because of the persistent death threats being received by all members of the family, they hoped that the threats would stop. However, the threats did not stop but actually increased in frequency. The applicant claims that LeJ also wrote a threat letter to his [relative] [Mr C]. The Tribunal asked the applicant why he thought, if LeJ were specifically targeting his family, LeJ had not been able to act on these threats over this period. The Tribunal also asked the applicant, whether the threats were continuing today, and why other family members had not fled Quetta in the face of these threats if they had been continuing since 2009. As noted above, the applicant indicated that at various times they had varied their routes to their shop, had varied the opening and closing times of the shop, and had restricted their movements and stayed in the [Location 1] area where there had been no incidents. He said that family members did not seek to flee elsewhere in Pakistan as target killings occur all over Pakistan. When asked about his brother who worked in Islamabad, the applicant said that he travels there by air and travels to the airfield in a group through the cantonment area to maximise his safety. He commented that Hazaras are also restricted to certain areas in Islamabad and that outside those areas they are targeted. The applicant said he did not know if family members were still receiving threats from LeJ. He commented that while he still speaks with his brothers they do not tell him whether or not they get threats because they do not want him to become more worried.
Noting DFAT Country information that indicates that DFAT understands that Hazaras generally stay within the two predominantly Hazara enclaves in Quetta, where they enjoy a greater degree of security, the Tribunal accepts that the applicant’s family members would restrict their movements within Quetta to maximise their security. The applicant’s comments regarding his brother flying to Islamabad are also consistent with DFAT advice[11] that Hazara community leaders have reported that to avoid the risks associated with road travel many Hazaras able to afford the cost choose to fly out of Quetta to reach other destinations in Pakistan.
[11] DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March 2014.
The Tribunal does not accept, however, that if family members remain the subject of ongoing, targeted threats from LeJ, LeJ would not have attempted to act on these threats since October 2009, and that the applicant’s family members would not have spoken to him about those threats. The Tribunal concludes, therefore, that the family is not the subject of ongoing threats from LeJ.
The Tribunal discussed with the applicant country information which indicates that, since the commencement of counter-terrorism measures by the Pakistan government in 2014, the security situation generally in Pakistan[12] has improved and that this has included an improvement in Quetta and in Balochistan[13]. The relevant country information indicates a decline in generalised violence as well as sectarian violence. Country information[14] indicates that credible sources have told DFAT the number of sectarian attacks in Balochistan has declined in 2015 because of the successful targeting by security forces of prominent militant leaders including, for example, LeJ leaders Usman Saifullah Kurd and Malik Ishaq. However, the DFAT advice also indicates that, because they are ethnically distinct, militant groups target the Hazara community to a greater extent than other Shias in Balochistan. DFAT notes that there were ten sectarian attacks in Balochistan in 2015, resulting in 29 deaths (seven attacks specifically targeted Hazaras, resulting in 16 fatalities, while two attacks targeted Shias in Quetta, resulting in 13 deaths). There was also an attempted suicide IED attack close to the entrance of Hazara Town on 18 July 2015. A group of students from the University of Balochistan claimed responsibility for a number of these attacks. DFAT understands that Hazaras generally stay within the two predominantly Hazara enclaves in Quetta, where they enjoy a greater degree of security.
[12] DFAT County Information Report, Pakistan, 15 January 2016.
[13] ANNUAL SECURITY REPORT 2015 Author: Muhammad Nafees
[14] DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March 2014.
The Tribunal gives weight to DFAT’s conclusion that there remains both a moderate level of generalised violence in Balochistan and a moderate level of sectarian violence, and that, despite a decline in the number of sectarian attacks, Hazara Shias remain segregated and are a key target of militant groups in Balochistan. The Tribunal concludes, therefore, that the applicant faces a real chance of persecution amounting to serious harm, for the Convention reasons of his race and his religion, should he return to Quetta in Balochistan
Risk of harm in other locations in Pakistan
The Tribunal has considered whether the risk of harm that the applicant fears is the same across Pakistan, and whether there are locations within Pakistan where the applicant would not face a real chance of persecution amounting to serious harm. The Tribunal has also considered whether it is reasonable, in the sense of practicable, for the applicant to relocate within Pakistan, to avoid the harm he fears.
In this regard, and as discussed with the applicant, the Tribunal has considered the following country information from DFAT:
·The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA, and varies depending on the location of Pakistan military operations. Urban centres also tend to be more secure than rural areas, with the exception of Karachi.
·Because of Pakistan’s size and diversity, there are viable relocation options for members of most ethnic and religious minorities: internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from non-state instigated discrimination or violence. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas.
·The population of Islamabad grew from around 800,000 at the time of the 1998 census to almost two million in 2011. Founded in the 1960s, Islamabad has a relatively high population of internal migrants, many from conflict-affected areas in FATA, Khyber Pakhtunkhwa and Balochistan. There are numerous police checkpoints along highways leading into Islamabad, and at major intersections and prominent buildings within the capital. These provide a strong deterrent to militant groups planning attacks in the capital by increasing the risk of detection. Paramilitary Rangers also continue to patrol streets throughout Islamabad, having been deployed throughout the city in April 2014.
·Transportation costs and the higher costs of living in larger cities can operate as a barrier to internal relocation, although they can be offset by higher wages typically received in these locations. However, there are a range of accommodation options in cities like Karachi, Lahore and Islamabad and no evidence to indicate any accommodation shortages.
·There are also Hazara communities in large urban areas including Karachi (up to 15,000), Lahore, Multan, Islamabad and Peshawar.
- Shias represent 20 per cent (approximately 36 million) of Pakistan’s estimated Muslim population of 180 million people and the Shia population is spread throughout Pakistan.
- Article 20 of the Pakistan Constitution provides for freedom of religion. There are no laws or Government policies that discriminate against Shias on the basis of religion.
- DFAT assesses that Shias do not suffer greater economic disadvantage than other groups in Pakistan. DFAT assesses that there is no specific discrimination against Shias in relation to education.
- Many religious and secular charities provide emergency relief, education, health and other services, which address the specific needs of their communities or sects.
- Levels of generalised and sectarian violence remain lower in Punjab than other parts of Pakistan. Islamabad remains relatively safe for migrant Shia communities.
·Many urban centres are home to large Shia communities. Shia communities are generally integrated with Sunnis in their daily lives. Shias are often employed in Government and hold high offices.
·Most Shias in day-to-day life face a low risk of sectarian violence. Attacks against Ashura processions pose the greatest risk for most Shias, but DFAT assesses the overall risk to be low, given the size and yearly frequency of the processions. Broadly, DFAT assesses that there is a willingness by Pakistani authorities to protect Shia communities.
·DFAT assesses that there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high-profile professionals.
Based on the available country information, the Tribunal concludes that the applicant would not face the same level of risk if he relocated from Quetta in Balochistan, an identified higher risk area in Pakistan, to a much lower risk major urban centre such as Islamabad. The Tribunal concludes that the level of risk that the applicant would face in Islamabad would not amount to a real chance and therefore finds that the applicant would not face a real chance of persecution amounting to serious harm due his Hazara ethnicity and/or his Shia religion if he relocated to Islamabad. The applicant commented that Hazara Shias are also restricted in Islamabad and if they go outside certain areas they are targeted. While the Tribunal accepts that Hazaras generally are more readily recognisable because of their distinct physical appearance, it is clear that DFAT has taken this into account in preparing its country advice. Based on the advice from DFAT outlined above, the Tribunal does not accept that the level of risk that the applicant would face, as a Hazara Shia in Islamabad, would amount to a real risk of persecution.
The applicant has also claimed that he is at risk because he was a Hazara Shia shop owner and because of his links to his brother who was killed and his [relative] who is a retired former [police] officer in Balochistan. The Tribunal notes that the applicant was not a store-owner but rather worked in the [store] for some years on a voluntary basis. He ceased working there in April 2011. Noting the DFAT advice that there is a low risk of sectarian violence for most Shias, and a moderate risk for prominent Shias such as high-profile professionals, the Tribunal does not accept that the applicant would face a higher risk of harm as a consequence of having worked in a [store]. There is nothing to suggest that the applicant’s brother was killed because of his links to the applicant’s [relative] who was a [police] officer. The killing appears to have been random and opportunistic rather than specifically targeted, noting that another person, [an occupation], was also shot by the same assailants and subsequently died. As noted in paragraph 36 above, the Tribunal does not accept that the family is the subject of ongoing threats or specific targeting by LeJ or other anti-Shia militant groups. The Tribunal therefore concludes that the applicant does not have the profile of a prominent Shia, and therefore does not face a real chance of persecution amounting to serious harm in Islamabad, from LeJ, Sepah Seba, and other affiliated or anti-Shia militant groups, for any of the reasons outlined above, either considered separately or cumulatively.
The Tribunal has also considered the claim that the closure of the shop has affected the applicant’s capacity to subsist as he has no other means to support himself. The Tribunal does not accept this claim, noting that the applicant has been supported by his family for most of his life, that he indicated that he worked at the shop on a non-paid basis, and that it is clear that his family members who have remained in Quetta have been able to meet their expenses through a combination of their savings, [details deleted]. The Tribunal concludes that the applicant‘s capacity to subsist is maintained through the support that he can reasonably expect to receive from his family should he return to Pakistan, given his family’s past behaviour in supporting him for most of his life.
Reasonableness of relocation
The Tribunal has given careful consideration to the whether it is reasonable, in the sense of practicable, for the applicant to relocate to Islamabad. The Tribunal notes that the applicant is [age] years old, has limited education and a limited work history, having been employed only on a non-paid basis in his brothers’ shop, and has [an] injury that restricts his [mobility]. However, the applicant has indicated that he speaks Urdu as well as Hazaragi and the Tribunal also finds that the applicant has been supported financially for most of his life by his family. In this regard, the Tribunal considers it is clear that his family are a family of some means. [Details deleted]. The applicant told the Tribunal at the hearing that his brother [Mr B] now [does business] to pay his daily expenses. Most significantly, the applicant told the Tribunal that his bother[Mr D], moves between Quetta and Islamabad where he rents a house and runs a [business] from an office he has established within the rental property. The applicant also told the Tribunal that his brother flies between Quetta and Islamabad, indicating that his brother has the means to be able to afford air travel. When the Tribunal asked the applicant whether relocation to Islamabad might be an option for him, he commented that he was fearful of the FIA stopping him at the airport and that in Islamabad they are also restricted. The Tribunal has addressed this latter comment above and has addressed the issue of treatment on return to Pakistan below. Given that the applicant’s family have supported him for most of his life, the Tribunal considers that it is reasonable to consider that they would continue to support him, including in relation to accommodation and other support to settle in Islamabad. The Tribunal also considers that, given the family’s past behaviour in supporting the applicant, it is reasonable to expect that this would be extended to the applicant’s new wife, should she wish to accompany him to Pakistan. Given this significant family connection to Islamabad and the family’s past behaviour in supporting the applicant, the Tribunal concludes that it is reasonable, in the sense of practicable, for the applicant to relocate to Islamabad, where the Tribunal concludes he would not face the real chance of suffering the persecution amounting to serious harm from LeJ, Sepah Seba, and other affiliated or anti-Shia militant groups on account of his Hazara ethnicity and/or Shia religion, that he would face in Quetta.
Risk of harm as a failed asylum seeker returned from the West

The applicant has claimed to fear that if he returns to Pakistan as a failed asylum seeker he will be harmed and even killed, or his family will be harmed because he will be accused of being a supporter of the West.   At the hearing the Tribunal asked the applicant to comment on country information from DFAT[15] regarding returnees from the West, noting that he has indicated that he departed Pakistan legally on his original passport, travelling from Karachi to [Country 1]. This information indicates that:
·     Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available and western-branded chains operate throughout Pakistan. Both Urdu and English are recognised as official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West.
·     In practice, returnees generally leave Pakistan for interim destinations on valid travel documents and consequently do not commit immigration offences. Those who return voluntarily with their own, valid travel documents are processed like any other Pakistani citizen returning to Pakistan.
·     Only those who return involuntarily, on charter flights, or who have emergency travel documents are likely come to the attention of authorities at airports.
·     Pakistan’s Federal Investigative Agency may question involuntary returnees to determine whether they are wanted for crimes in Pakistan. This includes minor immigration offences such as unlawful emigration and more serious offences including human trafficking and people smuggling. Unlawful emigration is punishable by a fine or imprisonment for up to five years. In practice, however, DFAT understands that those who may have committed minor offences are generally issued with a small fine and released.
[15] DFAT County Information Report, Pakistan, 15 January 2016.
Based on the country information above, the Tribunal does not accept that the applicant and/or his family will face a real chance of suffering persecution amounting to serious harm or a real risk of significant harm, from LeJ, Sepah Seba, other affiliated or anti-Shia militant groups, or from any other group, as a consequence of the applicant having spent time in a western country or having returned from a western country as a failed asylum seeker. In response to this information at the hearing the applicant commented that he was concerned that the Federal Investigative Agency (FIA) would create a lot of problems for him if he was returned to Pakistan because he knows that the FIA regularly stop people at the airports and seek bribes. The DFAT advice above indicates that it is possible that the applicant will be questioned and fined by the FIA, especially if the applicant were to return to Pakistan involuntarily on a charter flight and/or on an emergency travel document. However, even in these circumstances, given the applicant’s background, where there is no suggestion that he has been involved in more serious offences including human trafficking and people smuggling offences, it would be expected that, at worst, he would be issued with a small fine and released. The Tribunal does not consider that such treatment constitutes persecution amounting to serious harm or significant harm.
Does the applicant have a well-founded fear of persecution if he returned to Pakistan?
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution amounting to serious harm, if he were to return to Pakistan and relocated to Islamabad, now or in the foreseeable future. Having considered the totality of the applicant’s circumstances, the Tribunal concludes that internal relocation is a reasonable option for the applicant.
Accordingly, 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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
The applicant’s adviser has stated that, if the applicant is removed from Australia, there is a real chance that he will suffer significant harm at the hands of anti-Shiite militant groups that have been targeting the applicant and his siblings. This is the same Convention-based harm that has been discussed above, which the Tribunal has found there is not a real chance or a real risk the applicant will face, if he were to relocate to Islamabad. Having regard to the findings of fact set out above, the Tribunal also does not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm, now or in the foreseeable future.
The Tribunal accepts that, based on the relevant country information and the applicant’s individual circumstances as set out set out above, there is a real risk that the applicant would face significant harm, as defined in s.36(2A) of the Act, should he return to Quetta. The Tribunal considers that this risk of significant harm comes from anti-Shia and anti-Hazara militant groups. However, the Tribunal considers that, as outlined above, there is an area within Pakistan, namely Islamabad, which the applicant can relocate to where there is not a real risk of him suffering significant harm. Having regard to the findings of fact set out above, the Tribunal concludes that, taking account of the personal circumstances of the applicant, it is reasonable for him to relocate to Islamabad in Pakistan where there is no real risk of significant harm.
The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Paul Windsor
Member

Editors: Imtiaz Gul and Zeeshan Salahuddin CENTER FOR RESEARCH AND SECURITY STUDIES sourced at

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1416692 (Refugee) [2016] AATA 3873

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