1419460 (Refugee)

[2016] AATA 3660

1419460 (Refugee) [2016] AATA 3660 (5 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419460

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Amanda Goodier

DATE:5 April 2016

PLACE OF DECISION:  Perth

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

Statement made on 05 April 2016 at 2:25pm

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

3. The applicant appeared before the Tribunal on 28 January 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Pakistan 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 Pakistan, there is a real risk that he will suffer significant harm.   In considering these issues, the Tribunal has applied the law set out in Annexure “A” and has carefully considered all of the applicant’s claims and evidence in light of the independent material referred to by the applicant and provided in his submissions and that referred to by the delegate in their decision which was attached to the application for review as well as the independent country information referred to in this decision. 

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

   Country of reference and home area

7. The applicant claims to be a citizen of Pakistan and provided various documents in support of his identity.  The delegate was not satisfied that the applicant is who he claims to be but for the purposes of the decision accepted his name and age as stated and as being [applicant name], aged [age] years. The delegate was also satisfied on the applicant’s oral evidence that he was born in and is a citizen of Pakistan.

8. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Pakistan and that Pakistan is his country of nationality and receiving country.

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

10. The applicant claims to have been born in [his home] Village, [District 1], Upper Kurram, Kurram Agency, Pakistan, where he resided from his birth in [year] until his departure for Australia in February 2012.  The Tribunal finds that the applicant’s home area is [District 1], Upper Kurram, Kurram Agency.

    Assessment of claims

    Background

11. The applicant’s claims have been restated in the delegate’s decision.  He claims to have been born on [date] in [his home] Village, [District 1], Upper Kurram, Kurram Agency, Pakistan.  He states his religion is Shia Muslim and his ethnic group Pashtun.  He is a member of the Turi tribe. He received about [number] years of education.  He claimed that he initially worked on the family farm before [working as an Occupation 1] between his village and [District 1] and between [District 1] and Peshawar.  He indicates that he is married with a young child and his family continue to reside in their home village. 

12. The applicant indicates that his village is 100% Turi and is close to the mountains and border with Afghanistan.  His village is very close to [City 1]. He claims that the Taliban shoot missiles into the village every 2 to 3 days and his life is at constant risk.  From 2008 he worked as [an Occupation 1], first [working] from the village to [City 1] and from 2009 [travelling] to Peshawar as well.  When [working] between [District 1] and Peshawar there was constant conflict between Sunni and Shia and conflict with the Taliban.  The route was blocked by the Taliban for about 3 years but reopened about 3 to 4 months before he left Pakistan.  Sometimes he would [travel] to Peshawar about once a month because of the road blockage and other times about 20 times a month.  When the route was blocked he [travelled] around the local area because it was life threatening to pass the blocked area because of his Shia religion and as a Turi.  [In] February 2012 there was a major bomb blast at [a location] in [City 1] and he realised it was no longer safe for him to live there.  If he returns to Pakistan he fears he will be kidnapped and killed by the Taliban because of his religion and ethnicity.  He fears the Taliban and Sunni people who persecute and discriminate against Shias.  He will suffer arbitrary arrest and detention, imprisonment, physical assault and torture and possibly death at the hands of the Taliban and/or other anti-Shia extremists because of his ethnicity and religion.  He will also be at risk because he is a failed asylum seeker.

13. While the delegate was satisfied that the applicant was a Pashtun and a member of the Turi Tribe as well as a Shia Muslim who originated from the Kurram Agency, the delegate did not accept that he lived in the Kurram Agency or FATA after 2007.  The delegate did not accept there was a real chance or real risk the applicant feared harm on his return to Pakistan for any reason including because he was a Shia Muslim, member of the Turi tribe, Pashtun or a failed asylum seeker.

14. The applicant provided various copies of news reports on incidents of violence in Afghanistan as well as news reports on sectarian violence in Pakistan.  The applicant also provided the Tribunal with copies of articles about the targeting of Shias in Pakistan by extremist groups, including articles relating to the emergence of IS in and around [District 1] and Pakistan. 

15. Prior to hearing a submission was received from the applicant’s representative.  It was submitted that he is a Shia Muslim and member of the Turi tribe.  He fears harm from the Taliban because he has been declared as non-believer because of his Shia religion and imputed therefore as being opposed to the Taliban.  It was submitted that the applicant has given consistent evidence which clearly establishes that he has suffered persecution for the reasons of his religious beliefs and imputed political opinion.   It was submitted that the contention that a person cannot be a refugee if the harm or persecution claimed appears to be part of a generalised situation within his country is the wrong application of the law.

16. It was submitted that the TTP has also started fighting against the Turi people and the Haqqani Network and TTP have joined forces with the Sunni Bangash tribes in the Kurram Agency against the Turi people.  It was submitted that the Turi tribes have actively fought against the Taliban.  He worked as [an Occupation 1] and found his work dangerous and life threatening because to be stopped at a Taliban road block risked being identified and killed as a Shia Muslim. 

17. It was submitted that the applicant would be identified as a Turi and Shia because of his name and accent.  There are frequent bomb attacks on Shia places and that is why he decided to leave.  There is nowhere in Pakistan where he could safely live.  He cannot rely on the Pakistani forces to protect him.  The submission referred to a report by Amnesty International dated June 2010.  It was submitted that the situation has become worse since he left referring to recent events in relation to bombings in [District 1] in December 2015 and Peshawar in January 2016. 

18. The applicant provided copies of various articles in relation to attacks in Afghanistan by the Taliban.  He provided various articles in relation to a car bombing in [District 1] in [2012] believed to have been committed by the Taliban as well as an article from The Australia dated 10 September 2012 discussing the killing of Hazaras in Pakistan and the threat against Shias being the driving force behind them departing for Australia on boats.  Articles on the bombing of the market in [District 1] in December 2015 were also provided as well as articles on twin explosions in the main market in [District 1] in 2013. An article on the killing and abduction of members of the Turi tribe along [a specified] road in March 2011 was also provided. The applicant also provided articles dated November 2014 about the gunning down of a cleric from [District 1] who had moved to Islamabad.  Articles on attacks on Shia mosques in Islamabad in February 2015 and Peshawar in February 2015 were provided.   He also provided a copy of the US Commission on International Religious Freedom for Pakistan Annual Report for 2012 mentioning attacks against Shias.  

19. Submissions were provided to the Tribunal following the hearing, addressing concerns raised by the Tribunal during the hearing. It was submitted that the applicant’s evidence given under oath should be accepted in preference to the information and opinion contained in country information put to the applicant for comment.   It was submitted the most recent country information does not support DFAT’s assessment that the situation in Pakistan is getting better for Shia people.  The representative referred to prominent Shias being targeted and killed, the attack on the army school as well as other attacks on establishments indicates that the authorities are unable to protect themselves, therefore they cannot protect him.  The submission referred to country information and reports that the situation is getting worse and the presence of and support for IS in Pakistan. It also referred to a 2010 article on the blockade by the Taliban of the Turi tribes in Kurram. 

20. It was submitted by the applicant as well as his representative, that the separation from and worry about his family remaining in [District 1] is affecting his mental health and his family refrain from telling him everything because of the effect and concern for him.  He has been separated from his family for over 4 years and is struggling due to the separation. 

    Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

21. The Tribunal must consider whether the applicant has a well-founded fear of persecution in Pakistan for one or more of the five Convention reasons. In this matter, the applicant has claimed that he has a well-founded fear of harm as a result of his Shia religion; his Turi ethnicity; his actual or imputed political opinion against the Taliban and/or the TTP and/or other extremist Sunni groups and/or sympathisers on account of, cumulatively or separately, his profile as a Turi Shia Muslim from the Kurram Agency; and his time spent in Australia as an asylum seeker.

22. He also claims that as he was [an Occupation 1] in the area, he is well known and will be identified any where he goes in Pakistan.  He claims he is identifiable as a Turi tribe member and as a Shia because of his accent, his address and because he originates from the [District 1].

23. He also claims that the authorities will not protect him because he is a Shia and they cannot protect themselves.

24. The applicant referred to bomb blasts in [District 1] as well as other incidents where Shia’s had been targeted and harmed.  He fears he will be decapitated, shot, kidnapped and killed.  He referred to the Sunni/Shia war in his area for the past years, indicating he did not know why.  He also indicated that IS have sent out letters in his area threatening Shias.  He thinks they did this about a month ago.  The letters were threatening decapitation and blocking the road and the letters were distributed through [District 1]. When put to him that there are many Shias living in the area so why was he specifically targeted, the applicant responded that there are many and also many killed every day and every hour.  He was [an Occupation 1] and everyone knows him and therefore it was particularly dangerous for him.  He indicated he [travelled] around the area or to Peshawar.  When asked what problems he had [in his job], the applicant stated that he received telephone and general threats from unknown numbers for 4 to 5 years during the fighting between the Sunni/Shia and the Taliban were involved.  [Occupation 1s’] mutilated bodies were sent back to [District 1] and it could have happen to him. He told the Tribunal he was never stopped, but they made plans for him and if he changed his [schedules] he would then receive a telephone call saying he changed his [schedule] and they did not catch him but when they do they will mutilate and cut him into small pieces.  He can’t remember specifically when this was but for 4 to 5 years that was the life with bomb blasts and people killed in fighting and he faced the tension.  When asked when they made plans for him, the applicant responded that it happened many times, it happened 2 to 3 times a month and it happened in 2008 and 2009 when they said they were waiting for him at a particular place or at that particular place.  He said this happened all the time.  The Tribunal put to the applicant that there was a war between the Shias and the Sunnis and many Sunnis were killed by Shia to which the applicant responded that he is sure that happened but the Sunnis moved out to another area and he is sure they will cause problems there.  He reiterated that as [Occupation 1] he is known everywhere.  If he returns he will be killed or decapitated or kidnapped as people were just recently. 

25. The applicant claims that regardless of where Shias travel, if they are stopped by the Taliban they are likely to be shot and beheaded as a Shia from [District 1]. The Taliban would have no difficulty identifying the applicant because of his name and accent, and his features. His national identity card has his address in [District 1] and it is for that reason that he cannot relocate to another part of Pakistan. No matter where he lives in Pakistan he will be targeted at religious celebrations and different occasions. Suicide bombers are known to target groups of Shias on holy days and religious festivals as well as Shia mosques anywhere in Pakistan.

26. The applicant claims that as a member of the Turi tribe he will be recognised by his accent and address and it will be known that he is a Shia.  He also [worked in Occupation 1] and everyone knows him.  People from his area, both Sunni and Shia have moved elsewhere in Pakistan and they will remember that he is a Shia and he will be harmed as a result. He claims many Sunni people in his area have been displaced and moved elsewhere in Pakistan and this increases the likelihood of him being recognised.  He also states he has little education and a family to support.  He told the Tribunal that he has been sending money home to his family but currently is unemployed and receiving Centrelink.  He told the Tribunal that he does not speak the language and cannot move anywhere else in Pakistan.  He told the Tribunal that there are many Shias living in his area and they are still targeted and there is no-where else in Pakistan where there are as many Shias living. He has also lived in a western country for some time and will face discrimination when he returns.

27. The applicant told the Tribunal that his [specified relatives] went to Rawalpindi to buy wedding stuff.  When they went there people tried to kidnap them but they managed to escape.  He told the Tribunal they travelled by car and they went to Rawalpindi as they could get more variety and it would be cheaper to buy the goods there rather than locally.  He does not know the exact date when they travelled, he only knows what his father told him.  When asked for further details about the kidnapping, the applicant responded he only knows what his father told him and they reported it to the police who did nothing.  When asked why his [relatives] travelled by road to Rawalpindi if they were so fearful for their safety the applicant responded that there are needs so they must travel for those needs and they may need to go for treatment also there was more variety and the goods were cheaper in Rawalpindi.  The Tribunal put to the applicant that he claims Shias are targeted all over Pakistan yet his [relatives] travelled to Rawalpindi just to buy goods because there was more variety and it was cheaper.  The applicant responded that time to time there is some urgency or need that forces a person to leave to travel and a person can be attacked at home. The Tribunal put to the applicant that his [relatives] did not travel because of necessity or health reasons but because goods were cheaper.  It was submitted that weddings in Pakistan are for large numbers of people and the cheaper cost of goods is a relevant factor to be considered as should be having something different from other weddings in the area. 

28. The applicant confirmed that his wife and child continue to reside in the family home in [District 1] with his parents and siblings.  When he was working, he regularly sent money to them for their support and they continue to do a little farming.  When asked why his family continue to reside in the family home safely, the applicant responded because they do not go outside very much.  They rely on him for support.  When asked about his older brother and why he does not support the family as would be expected culturally, the applicant responded that he has married and moved away and these things happen in families.

29. The applicant claims to have [worked in Occupation 1] from about 2007 to the time he departed Pakistan in February 2012.  While he referred to incidents of violence in that period, when asked whether he had been specifically targeted, the applicant again referred to general incidents of violence in the area as well as incidents of violence against Shias in the region.  When asked about the calls he received indicating he had again missed being attacked by the Taliban or other Sunni extremists, the applicant indicated that it happened 2 to 3 times a month and it happened in 2008 and 2009. He told the Tribunal that while he was never stopped, they (referring to the Taliban or other Sunni extremists) had made plans for him and he knows this from the telephone calls. When he changed his [schedule] he would receive a phone call saying they did not catch him but when they do they will mutilate and cut him into pieces. 

30. The Tribunal accepts the applicant’s claims regarding the security situation in [District 1] in 2007 and 2008. The Tribunal accepts on the basis of the independent information before it that the most sustained conflict in Kurram Agency since 2007 has been the violence between the Turis, their Shia allies and some Bangash clans and Sunni extremists groups from both Afghanistan and Pakistan. Insurgent groups have sought to use a corridor between Pakistan and Afghanistan that passes through the Upper Kurram Agency and the majority Shia population in this area, particularly centred around [District 1] and surrounding districts, denied them this route. [Information deleted].

31. The Tribunal finds the applicant’s claims of attacks in the area plausible and consistent with the independent information regarding attacks which were not only occurring within the city of [District 1] and surrounding areas at that time, but also the Taliban’s tactic of blockading the [specified] road which linked [District 1] to the rest of Pakistan and launching attacks on the road. The evidence indicates that there were frequent attacks on this road and although they were aimed at Shias, the attacks were random attacks against Shia [travellers] on that road.

1. The applicant stated that he had never been stopped by the Taliban in all the time he was [working in Occupation 1] in and around [District 1] as well as along roads to Peshawar.  The applicant claimed he would sometimes [travel] to Peshawar about once a month and other times about 20 times a month.  When the route was blocked he drove around the local area because it was life threatening to pass the blocked area because of his Shia religion and as a Turi.  He also indicated that the road was blocked for about 3 years but had been opened for 3 to 4 months prior to him leaving Pakistan in February 2012.  He also indicated that when driving between [District 1] and Peshawar there were constant conflict between Sunni and Shia and conflict with the Taliban.  However, in all the time he [worked in Occupation 1] he was not stopped by the Taliban or any other Sunni extremist group or experienced any difficulties because of the conflict.    

2. The applicant claims that he was continuously threatened by the Taliban over the telephone that they would get him and harm him and cut him up into pieces and that while they missed him this time, they would get him next.  The applicant claims that he is well known because he was [an Occupation 1].  Yet he continued to [work in Occupation 1] around the area, including to Peshawar, without experiencing any harm in the 5 year period he claims he [worked in that job], including during a time as referred to by the country evidence, as an extremely volatile time.  The Tribunal has considered that he [altered his venue schedules], rather than the same [schedules], yet he claims to be well known and therefore would be reported to the Taliban anywhere he went, yet he managed to [move through] various [venues] for a period of about 5 years.  The Tribunal considers that if he was as well-known as claimed and the Taliban wished to specifically target him and considering his [scheduled venues] could be reported to the Taliban, he was still able to consistently [move freely] on the roads in the area and along the road to Peshawar.  The Tribunal considers that had the Taliban or other extremists had any interest, adverse or otherwise, in the applicant they would have taken considerably more direct action against him, rather than waiting for him to turn up at some point along the road or route he was to have taken and they would have taken that action at some time during the 5 years he claims to have [worked in Occupation 1] in the area and [travelled] the road between [District 1] and Peshawar.    After considering the applicant’s evidence, the Tribunal does not accept that the applicant left his home area because he was specifically targeted by telephone calls from the Taliban and/or other Sunni extremists or because he had experienced any harm or threats of harm from any person or group including the Taliban and/or Sunni extremists.

3. [Information deleted].

4. The applicant was asked what he fears if he returns to Pakistan and stated that he fears that they will decapitate, shoot, kidnap and kill him. When asked why the Taliban or extremist groups would have any interest in him if he returns to Pakistan, the applicant stated that he will be identified because he has a Shia name and he has features which appear to be Shia and Turi, his speech will also identify him as Shia and Turi and he [worked in Occupation 1] and everybody knows him.

5. The Tribunal indicated that his name was a name used by both Sunnis and Shias and there was no evidence that indicated members of the Turi tribe were physically distinguishable from other tribes.  The Tribunal accepts the independent evidence that he may be identified by the address on his NIC and by his accent as being a member of the Turi Tribe from the Kurrum  Agency and therefore as a Shia Muslim.[1] 

   [1] DFAT Thematic Report Shias in Pakistan 16 January 2016, 3.5 & 3.6.

6. The Tribunal discussed the independent evidence with the applicant indicating that there has been a significant improvement in the security situation in [Kurram Agency] and the number of incidents has declined. The Tribunal referred to reports confirming a downward trend in security incidents. In response, the applicant stated that he will have to work and it will be difficult for him to continue to access the road. The applicant also referred to the influence of Daesh (IS). The applicant was advised that there was no credible evidence that IS was present in the area or that there was evidence of any attacks implemented by them in [Kurram Agency] or other parts of Pakistan. The applicant stated they were present.  He referred to a Sheikh from [Kurram Agency] who was shot dead in Islamabad.

7. The Tribunal accepts that the Taliban and its associated groups have waged a campaign of violence against Shias throughout Pakistan, which is consistent with the applicant’s claims.[2]  The Tribunal also accepts that in [District 1], which is located in Upper Kurram, in the Federally Administered Tribal Areas (FATA), there has been considerable violence since at least April 2007 when violence erupted between Turi Shias and members of the local Sunni Bangash tribe.[3] The independent evidence indicates that since 2009 the fighting had claimed almost 1,500 lives and injured thousands more. Sources also indicate that the attacks continued in 2011 and 2012[4] and in February 2012 the Taliban claimed responsibility for such an attack which reportedly killed 26 people and injured numerous others. A further bomb blast was reported at the Turi market in [District 1] in September 2012, with the BBC reporting that 12 people were killed and dozens injured when a car bomb exploded as a security convoy passed by in the Turi market, destroying 30 shops and damaging 50.[5] In July 2013, there were also two major suicide bombs which killed 60 people and injured 200 people in [District 1].[6]

   [2] Human Rights Commission of Pakistan 2014, State of Human Rights in 2013, March, p.87.

   [3] [Deleted.]

   [4] [Deleted.]

   [5] [Deleted.]

   [6] [Deleted.]

8. The Tribunal accepts that the [specified] [road] has also been the subject of considerable violence directed by Sunni extremists at Shias travelling on that road.[7] At the height of the violence in 2012 there were numerous brutal attacks with reports of Shia truck drivers who were abducted and beheaded and Shia communities besieged as Sunnis controlled the [specified] road,[8] resulting in acute shortages of items for daily use, including medicine and food.[9] The Tribunal accepts that when the [specified] road reopened there were continued to be sporadic attacks by militants against Shias[10] and the presence of military checkpoints and escorts at that time did not prevent militants from attacking convoys travelling on the road.[11] The reports also indicate that in May 2012 several Shia passengers were injured following an ambush on their bus which was on route from [District 1] to Peshawar on the [specified] Road in Lower Kurram and there were reports of acid attacks targeting commuters in 2012.[12] There were further reports in April and June 2014 of passengers killed on the roadside near [District 1].[13] Recent reports also indicate that some seven people were killed in an attack in Peshawar in October 2014 and the van was travelling to [Kurram Agency] and most of the deceased were from [District 1] with names which suggest they were of the Shia and Turi groups.[14]

   [7] [Deleted.]

   [8]  [Deleted.]

   [9] [Deleted.]

   [10] [Deleted.]

   [11] [Deleted.]

   [12] [Deleted.]

   [13] [Deleted.]

   [14] [Deleted.]

9. The Tribunal accepts, therefore, that at the time the applicant left Pakistan in February 2012 that his home area in [District 1], Upper Kurram, Kurram Agency and the surrounding district was the subject of considerable violence. The Tribunal accepts at that time and, until recently, that as a Shia, Turi Pashtun from [District 1] who [worked in Occupation 1], that there would have been a real chance of serious harm for this reason.  

10. The Tribunal has therefore considered the situation for the applicant upon his return, having regard to the submissions, the applicant’s oral evidence and the independent evidence.

11. As discussed during the hearing, the independent evidence before the Tribunal indicates that there has been considerable stabilisation in the region in 2014 and 2015. The Pak Institute for Peace Studies (PIPS) and the Centre for Research and Security Studies (CRSS), both Pakistan think tanks, state that sectarian related violence decreased in 2014, with PIPS putting the decline at 35 per cent.[15] The FATA Research Centre[16] reports there were relatively few sectarian or other militant attacks in Kurram Agency in 2015 or the first 6 months of 2105 with their data indicating there were 14 security incidents in Kurram Agency from January to June 2015, mostly in lower Kurram.[17] 

    [15] Pak Institute for Peace Studies 2015, Pakistan Security Report 2014, January, p. 25; Center for Research and Security Studies 2015, Pakistan Conflict Tracker Report: Annual Security Report – 214, March p. 52.

    [16] The FATA Research Centre describes itself as a non-partisan, non-political and non-governmental research organisation based in Islamabad. It claims to be the first-ever think tank of its kind that focuses on the Federally Administered Tribal Areas. See <

    [17] DFAT Thematic Report Shias in Pakistan 15 January 2016, p12.

12. As discussed during the hearing, the DFAT January 2016 report on Shias in Pakistan advised that a truce had taken place in the Kurram Agency and was still in place. DFAT has also reported that the [specified] main road […] was open and was frequently used by civilian cars and the Federal Security Forces maintain armed checkpoints on the road, which has resulted in an improved security situation in the Kurram Agency.[18]  One report indicates that over 100 trucks were travelling through Kurram to the Afghan border every day and the movement of trucks has generated increased economic activity in the area with a June 2015 report stating that the increase in trucks has also generated employment opportunities for local people.[19]

    [18] [Deleted.]

    [19] Ali Z, Kharlachi – a hub of cross-border trade, but an eyesore too, Dawn 30 June.

13. The applicant gave evidence that his family avoid harm while remaining living in their home area as they do not go out and remain around the home. The Tribunal notes the applicant’s evidence that his [relatives] recently travelled to Rawalpindi to shop for a wedding.  The Tribunal notes that this trip was not for a necessity such as medical treatment.  While the Tribunal acknowledges the submission that there is more variety and the goods are cheaper in Rawalpindi, the Tribunal does not accept that if the danger was as great as the applicant claims for a Turi Shia Muslim travelling outside the area and along roads where he claims Shia Muslims are targeted by the Taliban and other Sunni extremists, that the applicant’s family members would take the risk of travelling for such non-essential items that could be purchased locally.  The Tribunal considers that the willingness of the applicant’s [relatives] to travel to Rawalpindi for the purchase of goods that could easily be purchased locally indicates that they felt safe leaving their home region and travelling along the roads.  The Tribunal does not accept the applicant’s evidence that his family remain safe as they remain in their home and do not go out as his evidence that his [relatives] travelled to Rawalpindi to purchase goods for a wedding indicates that his family do leave the family home and do participate in gatherings such as weddings.

14. The UNHCR report on a mission to Kurram has said, consistent with the DFAT advice, that general peace had been restored in Upper Kurram and Lower Kurram.[20]  Furthermore, in its Annual Security Report of 2014, the FATA Research Centre has stated that the Kurram Agency remained comparatively quiet in 2014 and there were a total of two incidents, one roadside bomb and the killing of a tribal elder on his way to the Sadda Bazaar.[21] The quarterly report for the second quarter (April to June of 2015) also stated that the Kurram Agency continued to remain relatively stable and only three security incidents had been reported.[22] Although not referred to in the reports, the Tribunal also accepts that there was a major attack in Peshawar in February 2015, which was referred to by the applicant and a report provided in relation to this incident, when approximately 20 people were killed when militants “fitted with suicide vests and armed with hand grenades and AK-47 rifles” attacked an Imambargah in Peshawar. The TTP claimed responsibility stating that the attack was revenge for the execution of Islamist Militant Dr Usman.[23]

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

    [21] FATA Research Centre, Annual Security Report 2014, 26 May 2015, p.46.

    [22] FATA Research Centre, Security Report: Second Quarter April-June 2015, 1 September 2015, pp.15-16.

    [23] Sherazai, Z S 2015, ’21 killed as Taliban storm Peshawar Imambargah’, Dawn, 14 February.

15. The FATA Research Centre’s Security Report for the third quarter (July to September 2015) refers to six security incidents in the quarter. Although this is double the level of the security incidents in the previous quarter, the report by the FATA Research Centre and a similar report from the South Asia Terrorism Portal indicates that although there was a rise in fatalities, the majority of the casualties were terrorists who were killed by the military forces.[24]  The latest DFAT report indicates that DFAT assesses a low level of sectarian violence overall in the FATA, and a low level of generalised violence in the Kurram.[25]  

    [24] FATA Research Centre, Security Report: Third Quarter July-September 2015, 1 October 2015, pp.15 -16.

    [25] DFAT Thematic Report Shias in Pakistan 15 January 2016, p13.

16. The Tribunal is satisfied that the country evidence discussed indicates that a level of security has been restored to the Upper and Lower Kurram. The UNHCR, DFAT and the FATA Research Centre have reported that the Kurram Agency has remained relatively quiet in 2014 and 2015 with only a few incidents in 2015 reported by the FATA Research Centre. The Tribunal accepts that a Shia cleric from [Kurram Agency] was killed in Islamabad in November 2014, but does not accept that this effects the assessment of the general security situation in the Kurram Agency.  The Tribunal is satisfied that both DFAT and UNHCR, when making their assessment that it was safe for people to return to parts of the Kurram Agency, would have taken into account the current security situation and the various incidents over 2014/2015. The Tribunal refers to the information from UNHCR, detailing a review of those who had returned to the region in Upper Kurram, in which it was reported that all key informants from five villages expressed satisfaction with the security situation in the area and shared that they felt safe and secure.[26] Those who were consulted also stated that no major security incidents had occurred since their return.

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

    The Tribunal accepts that militant groups maintain a presence in Kurram, and such groups include the TTP, LEJ, SSP and JeM. The Tribunal has had regard to reports of people joining Islamic State and to the applicant’s claims of IS moving into the area.  However, the Tribunal has not found any credible reports of active involvement in the Kurram by Islamic State.   DFAT also report that there is no credible evidence of an active or organised IS presence in Pakistan.[27]   The military has undertaken multiple operations since 2011 such as Operation Zarb-e-Azb, reducing violence in areas, particularly the Kurram.[28] Although the applicant disputed the Tribunal’s assessment of the country information, the evidence before the Tribunal indicates that the security forces have made considerable efforts to reduce attacks against the Shia population and to implement greater security to prevent terrorist attacks. DFAT has reported that there is willingness, although it is hindered by financial constraints, by the Pakistani authorities to protect Shia communities and in 2015 arrested thousands of clerics and religious leaders for inciting sectarian hatred, although the reports do not state whether the persons were subsequently convicted.[29] Furthermore, following the attack on the army run school in Peshawar, the government formulated a National Action Plan (NAP) to deal with terrorism and has provided police officers and rangers with sweeping new powers and has provisions to take action against sectarian groups including action against hate speech and the protection of religious minorities.[30]

    [27] DFAT Country Report Pakistan 15 January 2016, p8.

    [28] Khattak, D 2011, ‘Evaluating Pakistan’s Offensives in Swat and FATA, CTC Sentinel, vol. Issue 10, 301 October, p. 11; Shazad J 2012, ‘Operation Koh-i-Sufaid: Security forces clear 95% of Central Kurram Agency’, The Express Tribune, 19 December; DFAT Thematic Report Shias in Pakistan 15 January 2016; DFAT Country Report Pakistan 15 January 2016.

    [29] Gishorki, Z 2015, ‘Over 9,000 ‘hate preachers’ arrested under NAP’, The Express Tribune, 23 October.

    [30] Rumi, R 2015, ‘Charting Pakistan’s Internal Security Policy’, Special Report 368, United States Institute of Peace, p. 8.

17. The Tribunal accepts that there continues to be clashes between militants and the security forces and there have been occasional incident in which civilians have been killed or injured. The Tribunal also accepts that the applicant is recognisable as a Shia Turi from [District 1]. However, as stated above, there have been significant changes in the security situation in [District 1] and the Kurrum Agency since the applicant’s departure just over 4 years ago and since he made his application to the Department. The Tribunal considers the fact that the applicant’s family have remained in their home area indicates that the applicant and his family have no particular profile that will result in him facing serious harm from the Taliban or any other Sunni extremist group in his home area.  

18. The Tribunal finds on the evidence before it that there is not a real chance that the applicant will be targeted by the Taliban, or any other Sunni extremist groups or individuals if he returns to his home area of [District 1], Upper Kurram Agency. The Tribunal also does not accept that there is a real chance, given evidence of significantly reduced attacks and civilian vehicles using the [specified] Road, that there is a real chance that the applicant will be harmed either when returning to [District 1] on the [specified] Road or if he continues to travel on that road upon his return to his home area. The Tribunal is satisfied that there have been significant changes in the security situation since the applicant left Pakistan and he will be able to resume his business as [an Occupation 1] and travel on the road from [District 1] to other parts of Pakistan, including around his home area.

19. The applicant claimed there was an attempted kidnapping of his [relatives] at the market in Rawalpindi. He claims it was because they are from the Turi tribe and Shia Muslims. He claims it was reported to the police.  When asked to provide further information the applicant stated that he only knows what his father tells him and this was all he was told.  When asked why he was only raising this now, he claimed it was because he had just spoke to his family who told him but he does not know when it happened.  He claims his family do not tell him everything to spare him from worrying.  Without any further, the Tribunal is unable to be satisfied that there was an attempted kidnapping or if there was, it was because his [relatives] were targeted because they were Turi tribe members or whether it was a random attack. The Tribunal is not satisfied on the limited evidence provided that the applicant’s [relatives] were targeted for any specific reason and considers that if there was an attempt to kidnap them, it was nothing more than a random opportunistic attempt.

1. The applicant gave evidence that he fears harm because of acts of terrorism, sectarian violence and the general lack of security in Pakistan.  However as discussed and supported by country information, there have been significant changes in the security situation in [District 1] and the Kurrum Agency since the applicant’s departure just over 4 years ago and since he made his application to the Department. While the Tribunal accepts that there is some level of risk to the applicant in the context of terrorism and generalised violence, it finds on the basis of all the evidence before it that this risk is remote. 

2. Although the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency where the applicant’s village is located, as borne out by the country information discussed, including a recent attack in December 2015, the Tribunal finds on the range of sources consulted that the situation has changed significantly as compared to previous years and that there has been an improvement as a result of stabilisation in the region since the beginning of 2014. The Tribunal finds that there is nothing in the country information to suggest that this recent attack threatens the truce that has been in place since 2013. Nor does the Tribunal accept on the evidence before it that it can be inferred from this particular incident that the security situation in [District 1] or in Kurram Agency generally, has deteriorated such that there is a real chance that any Shia member of the Turi tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.

3. While the Tribunal accepts that there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured, the Tribunal finds that the overall country information indicates that the violence from the Taliban and other Sunni extremist groups and sectarian violence has decreased in the region, particularly from 2014 onwards, and when this is considered together with the applicant’s profile as an ordinary Turi Shia and the fact that the applicant’s family have remained in the area with some family members recently travelling to Rawalpindi without experiencing any serious harm in recent years, the Tribunal finds the chance of the applicant facing serious harm from the Taliban generally or from other Sunni extremist groups or individuals for reasons of his Shia religion, his Turi ethnicity, his occupation as [an Occupation 1], an imputed political opinion in opposition to the Taliban and/or other extremist Sunni groups on account of his Shia Muslim religion, his Turi ethnicity, his origins from [District 1] (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county) as an asylum seeker and his membership of a particular social group of “Turi Shias from Kurram Agency”,  is remote. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, for a Convention reason.

4. The applicant has also claimed that he fears harm as a failed asylum seeker and/or a person who has spent time in Australia as an asylum seeker and/or a person who has lived in a western country. The Tribunal is not satisfied that the applicant had any particular profile before he left Pakistan that would result in him being viewed adversely because he has spent time in Australia, a Western country and unsuccessfully sought asylum. Whilst there are some reports that militant groups have targeted Western or foreign nationals there is no information before the Tribunal that persons who have returned to Pakistan after spending time in a Western country are targeted or harmed for that reason upon their return.  As put to the applicant in the hearing, the DFAT Country Report indicates that western influence remains prevalent in many parts of Pakistan, that many Pakistanis have relatives living in western countries and many more aspire to migrating and living abroad. Those living abroad return to Pakistan frequently to visit relatives and are not at any increased risk because they have spent time in western countries.  DFAT also stated that they had no evidence that indicates individuals would be subject to discrimination or violence as a result of them having spent time in western countries.[31] 

   [31] [31] DFAT Country Report Pakistan 15 January 2016.

5. The Tribunal has considered the totality of the applicant’s circumstance as a Shia Turi who is Pashtun from [District 1], Upper Kurram Agency and [an Occupation 1] and who has spent an extended period of time in Australia and has unsuccessfully applied for asylum. However, even taking into account the cumulative effect of these circumstances, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of these reasons or for any other Convention reason upon his return to his home area.  

6. Considering the applicant’s claims both individually and cumulatively, as a Turi Shia from Kurram Agency who has spent an extended period of time in Australia, a western country and has applied for asylum, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Shia religion, his Turi ethnicity, an imputed political opinion in opposition to the Taliban and/or other extremist Sunni groups on account of his Shia Muslim religion, his Turi ethnicity, his origins as from [District 1] (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county) as an asylum seeker and his membership of a particular social group of “Turi Shias from Kurram Agency”if returned to Pakistan now or in the reasonably foreseeable future. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution if he returns to his home area in Pakistan now or in the reasonably foreseeable future.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk that he will suffer significant harm?

7. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions, which require the Tribunal to consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country that there is a real risk that he will suffer significant harm. 

8. The Tribunal has not accepted the applicant’s claims to have been specifically sought, threatened or targeted by the Taliban or any other Sunni extremist groups or that he would suffer harm because he is a Turi, Shia, Pashtun who has resided in a Western country and sought asylum or is [an Occupation 1] or any combination thereof. The Tribunal has found that there is not a real chance that the applicant would face harm on his return to [District 1], Upper Kurram for these reasons. The Tribunal has found that the situation in the applicant’s home area has changed considerably such that there is not a real chance he would suffer harm for any of the reasons he has claimed. For the same reasons, the Tribunal is also not satisfied that there is a real risk that the applicant would face significant harm upon his return to [District 1], including arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment.

9. While the Tribunal accepts that there may continue to be some sectarian, militant and generalized violence in the FATA generally, based upon all the country information before it and the Tribunal’s earlier findings and reasons, the Tribunal does not accept that the applicant faces a real risk of significant harm because of terrorist, sectarian or generalized violence including in his home area in [District 1], Upper Kurram. 

10. Considering the country information and his individual circumstances, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm because he has spent time in a western country (Australia) where he unsuccessfully sought asylum.

11. Having regard to its findings of  fact above and in respect to the specific claims he made as to the factual basis on which he claimed to fear harm, the Tribunal does not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. 

12. Accordingly the Tribunal does not accept 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 he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal is therefore not satisfied he is a person to whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSIONS

13. 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).

14. 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).

15. 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

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

    Amanda Goodier
    Member

    
    

    ANNEXURE A

    RELEVANT LAW

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

    Refugee criterion

18. 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).

19. 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.

20. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

22. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

23. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

24. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

25. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

26. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

27. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

28. 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’).

29. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

30. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

31. 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.[32]

    [32] DFAT Country Report Pakistan 15 January 2016, DFAT Thematic Information Report Shias in Pakistan 15 January 2016.