1507469 (Refugee)

[2016] AATA 4779

1507469 (Refugee) [2016] AATA 4779 (21 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507469

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Bruce Henry

DATE:21 December 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 21 December 2016 at 3:44pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Particular social group – Family of asylum seeker –Taliban – Extortion – Kidnapping – Threats of physical harm – State protection unavailable – Internal relocation unreasonable

LEGISLATION

Migration Act 1958, ss 36, 65, 91, 499
Migration Regulations 1994, Schedule 2, r 1.12

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied to the Department of Immigration for the visas [in] October 2014 and the delegate refused to grant the visas [in] May 2015.

3. The first and second named applicants appeared before the Tribunal on 20 December 2016 to give evidence and present arguments. [The] brother of the first named applicant (referred to in this decision as [Dr A]), also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration (the Department)[1] and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   [1] The relevant guidelines are found in the Departmental policy manual, PAM3 Refugee and humanitarian, entitled Complementary Protection Guidelines and Refugee Law Guidelines

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The Tribunal has before it the Department’s file and the Tribunal’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources, including material submitted by the applicants during the review.

12. Documents on the Departmental file establish that [the applicant] was born in Abbottabad, Pakistan in [year]. He arrived in Australia in March 2007 as the holder of a [temporary] visa granted to him in Pakistan. He [lived] in Australia until January 2012, when he returned to Pakistan. He came back to Australia in July 2014 as the holder of a [further temporary] visa and applied for protection visas [in] October 2014.

13. The other applicants for review are [the applicant’s] wife, who was born in Pakistan, and their daughter, who was born in Australia in [year]. They have not made separate claims in this application, and are included as members of the applicant’s family unit. [The applicant] and his daughter have another daughter born in Australia in [year], however she has not been included in this application.

14. The Tribunal is satisfied on the basis of identity documents on the Departmental file that all of the applicants are Pakistani citizens. The Tribunal is also satisfied on the basis of the same documentation that the other applicants are all members of the applicant’s family unit as that term is defined in r.1.12 of the Regulations.

15. The applicants are from Abbottabad, a city in the region of Khyber Pakhtunkhwa province in northeastern Pakistan.

16. The applicant provided a statement setting out his claims with his protection visa application. That statement, which is on the departmental file, makes it clear that the applicant fled Pakistan as a result of threats made against him by unknown assailants in Abbottabad in Pakistan. His claim is that these people are from the same group that threatened his brother, [Dr A], when he returned to Pakistan in 2014.

17. The detail of the original claims made by [the applicant] and supported by a number of statutory declarations and statements provided to the Department and to the Tribunal during the course of the review is identical to the claims made by his brother, [Dr A], whose case was determined by the Tribunal in RRT Case [number], [in] June 2014. In that case the Tribunal accepted [Dr A’s] claims as truthful, and as the claims were supported by the available country information his application was successful. After setting out his claims, the Tribunal found as follows:

    26.  The Tribunal notes that [Dr A’s] evidence on these issues was very detailed and coherent, and entirely consistent with the information previously provided.

    27.  The Tribunal also notes that the conclusion of [Dr A’s] visit to Pakistan in 2011 coincided with the attack on Osama bin Laden’s compound in Abbottabad by American forces which resulted in the killing of bin Laden. As has been widely reported, a Pakistani doctor who helped the Central Intelligence Agency pin down bin Laden’s location under the cover of a vaccination drive was convicted by a tribal court in northwestern Pakistan of treason and sentenced to 33 years in prison.

    28.  The Tribunal notes that the remainder of [Dr A’s] evidence, and that of his wife, was completely consistent with the information provided previously in the course this application. In particular, the evidence of both [Dr A] and [his wife] as to the events leading up to their departure from Pakistan at the end of 2011 were consistent, coherent and compelling. They were both able to answer detailed questions as to the circumstances of the kidnapping attempt in Abbottabad, and also provided the Tribunal with written statements from other witnesses to the event. The Tribunal is satisfied that this episode took place as described in their evidence, and that it caused the family to flee from Pakistan.

18. [The applicant’s] claim is that after his brother’s departure from Pakistan, the armed men who had threatened his brother and demanded payment of [amount] lacs from his brother turned their attentions to him. He says that in September 2013 two men had come to his neighbourhood asking questions about him and his brother. Then, [in] January 2014 he was stopped while travelling on his motorcycle to visit his family’s village by two men who threatened him with a revolver and asked him about his brother’s whereabouts. He said that they told him that they knew his brother was in Australia and that he was therefore responsible for paying the money to them. He says that he was told that if he attempted to inform police or avoid paying the money he would be killed.

19. [The applicant] claims that in June 2014, a letter was thrown into his home which stated that he was required to pay the money within two weeks. He was not at home at the time, but his wife called him very distressed by the incident. He and his wife decided not to report the matter to the police because of his brother’s previous experiences before his departure from Pakistan, so they decided to leave their home and travel to [a relative’s] home in Lahore, where they stayed for a few days. They then went to a close friend’s home [south] of Abbottabad for a couple of days.

20. At the hearing [the applicant] described this incident and said that while he was unsure which group the men who threatened him belonged to, the Pakistani Taliban are very active in this area and he believes that the men were associated with that group. He said that the Pakistani Taliban are responsible for most of the attacks on NGO workers in the region, and that for this reason he and his brother both believe that they were likely to be behind the threats and attacks on his family.

21. As the Tribunal has indicated above, the claims of [Dr A] have already been accepted and the Tribunal sees no reason to depart from the findings made in [Dr A’s] case in this case. The Tribunal accepts therefore that [Dr A] was threatened before his departure from Pakistan, and that the threats were most likely made by the Pakistani Taliban. The Tribunal also accepts on the basis of the country information set out in the attachment to this decision as to the security situation and the threat posed by the Pakistani Taliban in the Khyber Pakhtunkhwa area that the Pakistani Taliban continue to pose a serious threat to individuals that they choose to target in this area.

22. The Tribunal is satisfied that the treatment that [the applicant] fears, identified in his statements of his claims as kidnapping, physical violence and death, involves ‘serious harm’ as defined in s.91R(2), and thus amounts to persecution as defined in s.91R(1)(b) of the Act. The Tribunal is also satisfied that there is a real chance that the applicant would suffer that serious harm, and that the harm feared would be the result of conduct which is systematic, in the sense of being deliberate and premeditated, and directed at the applicant in a non-random way by the Pakistani Taliban: s.91R(1)(c) of the Act.

23. As noted above, a Convention reason or reasons must constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act. The Tribunal found the evidence of [the applicant] credible and convincing, as was the evidence of his brother [Dr A] and [Dr A’s] wife at the hearing in 2014. The Tribunal accepts therefore [the applicant’s] claims as to the threats and attacks made upon him after his brother’s departure from Pakistan, and accepts that those threats were made by the Pakistani Taliban because of his membership of the social group comprising the close family of [Dr A].

    State Protection

24. Given that the harm feared by the applicant is from groups such as the Pakistani Taliban rather from Pakistani state authorities, the Tribunal must consider whether he would be able to obtain protection from those state authorities were he to seek such protection. Under Australian law an unwillingness to seek protection from State authorities is justified for the purposes of Article 1A(2) where the state fails to meet the level of protection which citizens are entitled to expect according to ‘international standards’.[2]

    [2] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29].

25. Brennan CJ held in Applicant A[3]:

    [3] (1997) 190 CLR 225 at 233. See also at 258 per McHugh J.

    The feared ‘persecution’ of which Art 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to ‘the country of his nationality’ for protection of his fundamental rights and freedoms but, if ‘a well-founded fear of being persecuted’ makes a person ‘unwilling to avail himself of the protection of [the country of his nationality]’, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent.

26. The Department’s Refugee Law Guidelines, to which the Tribunal is required to have regard as noted above, state:

    If a State encourages or appears to be powerless to prevent it, persecution by private individuals or groups may bring a person within the Convention definition. A fear of persecution is one ‘...that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality.’ …

    In some circumstances, persecution may be established if the State tolerates or turns a blind eye, for a Convention reason, to personally motivated violent or discriminatory acts.

27. The Guidelines then refer to Gleeson CJ in Khawar at [31]:

    Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the State or agents of the State, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the State.

28. The Tribunal is satisfied that the available country information, particularly the UNHCR and US State Department reports, and the other sources cited by the South Asia Terrorism Portal, establishes that the government of Pakistan is selective in the protection that it provides to its citizens from the violence of particular militant groups, including those associated with the Taliban that are the source of the threat to the applicant in this case.

29. Further, while the DFAT and UK Home Office reports indicate that relocation can be an option in some circumstances in Pakistan, a number of the reports cited in the attachment refer to the ability of groups associated with the Pakistani Taliban to reach outside the areas such as Khyber Pakhtunkhwa due to the impunity they appear to enjoy from the Pakistani authorities. In these circumstances, the Tribunal notes that the UK Home Office and UNHCR both refer to the ability of Sunni militant groups to operate throughout Pakistan. UNHCR states that ‘Sunni militant groups, such as the banned Lashkar-e Jhangvi, reportedly operated with impunity, including in areas where State authority is well established, such as Punjab province and Karachi.’

30. Accordingly, having regard to the country information referred to above and to the principles set out in the Refugee Law Guidelines, the Tribunal is satisfied that the applicant would not be able to obtain effective protection from the harm that he fears from Pakistani state authorities were he to seek such protection.

    Relocation

31. In light of these findings, the Tribunal also considered whether the applicant may be able to relocate out of the Abbottabad area of Khyber Pakhtunkhwa where his family lives, and live elsewhere within Pakistan.

32. The Department’s Refugee Guidelines provide the following commentary on the issue of internal relocation:

    In SZATV, Kirby J noted the textual basis in the Refugees Convention for the relocation test in Australia is ‘well-founded’. The question for decision makers is whether the applicant’s fear of persecution for a Convention reason is well-founded in relation to the country as a whole. The High Court has provided an approach for determining whether internal relocation is viable by looking at the individual circumstances of each case and determining that it must be reasonable in the sense of practicable, for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.

33. The Tribunal is satisfied from the country information set out above, in particular the reports referring to the impunity the Pakistani Taliban appear to enjoy from the Pakistani authorities, that it is not for [the applicant] to relocate to a region of Pakistan where there is no appreciable risk of the occurrence of the feared persecution.

34. The Tribunal finds therefore that [the applicant’s] fear of persecution is well-founded for the whole of Pakistan. The evidence is clear, in the Tribunal’s view, that he would face a real chance of serious harm wherever he lived in Pakistan.

35. In relation to the other applicants, the Tribunal is satisfied that they have made no separate claims for protection, and are seeking protection as the dependents of [the applicant]. [The applicant’s] wife confirmed this in a statutory declaration provided to the Tribunal at the hearing, in which she described the incident at their home in June 2014 which she states has caused her considerable trauma.

36. The Tribunal has found above that that it is satisfied on the basis of documents on the departmental file that the second named applicant is a member of the family unit [the applicant] as that phrase is defined in r.1.12. Accordingly, the Tribunal is satisfied that the second named applicant satisfies s.36(2)(b)(i) of the Act.

    DECISION

37. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Bruce Henry
    Member

    
    

    ATTACHMENT ONE

    Country information

38. As noted above, the Tribunal is required to have regard to DFAT publications prepared expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent such DFAT report[4] on Pakistan states:

    2.28 Pakistan continues to face security threats from terrorist, militant and sectarian groups. Since the commencement of the assertive counter-terrorism military operation Zarb-e-Azb in June 2014, however, Pakistan military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015. Militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted, and no longer have access to safe-havens in Khyber and North Waziristan Agencies. The Pakistan Military has indicated an intention to remain in North Waziristan for some years to come. However, DFAT understands that militant sleeper cells remain in many urban centres and continue to target state and civilian infrastructure. The rugged terrain and porous borders in Pakistan’s tribal areas and between Pakistan and Afghanistan present ongoing challenges for maintaining security and enforcing the state’s writ.

    2.29 The Taliban insurgency and the war on terrorism have claimed more than 57,000 lives since 2001. Conflict in the FATA and Khyber Pakhtunkhwa remains an important factor for internal displacement and external migration. Approximately 1.6 million people were displaced by security operations in Pakistan’s north-west region from January-September 2015, for example. Many of these Temporary Displaced Persons (TDPs) have begun to voluntarily return to the FATA because of improvements in security (see ‘Internal Relocation’ below).

    2.30 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 (see ‘Internal Relocation’ below), with the exception of Karachi. This includes ‘cantonments,’ or secured areas, although militant groups have also specifically targeted these areas (see ‘Militant Groups’ below).

    2.31 Organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan. This is exacerbated by the proliferation of licenced and un-licenced small arms in Pakistan. According to the United Nations Office on Drugs and Crime, Pakistan’s homicide rate was the highest in South Asia in 2012 (7.7 per 100,000 people). While exact figures are not available, Operation Zarb-e-Azb, which has expanded to encompass paramilitary Ranger operations in Karachi, has substantially reduced the level of serious crime – including homicide – throughout Pakistan.

    [4] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 15 January 2016, p.20

1. The South Asia Terrorism Portal’s Pakistan Assessment 2016[5] states:

   [5] South Asia Terrorism Portal, Pakistan Assessment 2016, available at accessed 21 December 2016

   According to partial data compiled by the South Asia Terrorism Portal (SATP) database, 831 terrorism-linked fatalities have already occurred in Pakistan in 2016, including 222 civilians, 102 Security Force (SF) personnel and 507 terrorists/militants. The country has also recorded 82 major incidents (each involving three or more fatalities) resulting in 715 fatalities (183 civilians, 68 SF personnel and 464 terrorists). Further, 43 blasts accounting for 176 deaths and over 520 injuries in the current year. 

   During the corresponding period of 2015, Pakistan had seen 1,334 terrorism related fatalities, including 351 civilians, 107 SF personnel and 876 terrorists. The country witnessed 111 major incidents resulting in 1,021 fatalities (147 civilians, 59 SF personnel and 815 militants) in this period, as well as 83 blasts accounting for 214 deaths and over 398 injured.

   Through 2015, Pakistan recorded a total of 3,682 fatalities, including 940 civilians, 339 SF personnel and 2,403 terrorists/militants as against 5,496 fatalities, including 1,781 civilians, 533 SF personnel and 3,182 terrorists/militants in 2014. The number of major incidents also declined from 402 (accounting for 4,173 deaths) to 322 (resulting in 2,923 fatalities) over this period. Similarly, 2015 recorded 216 incidents of bomb blasts resulting in 495 deaths, down from 388 incidents resulting in 840 deaths recorded in 2014. Moreover, as against 25 suicide bombings accounting for 336 deaths in 2014, year 2015 recorded 19 such incidents resulting in 161 deaths.

   Terror-related fatalities have sustained a declining trend in Pakistan since the peak of 2009 when fatalities totaled a staggering 11,704 (2,324 civilians, 991 SF personnel and 8,389 militants). 2014 saw a transient aberration in the trend, with 5,496 fatalities, a marginal increase, on year on year basis, from 5,379 fatalities recorded in 2013. All four Provinces of Pakistan – Balochistan, KP, Punjab, and Sindh – along with the Federally Administered Tribal Areas (FATA) and Pakistan administered Kashmir (PaK) recorded declines.

   Operation Zarb-e-Azb(sharp and cutting) launched on June 15, 2014, in the tribal areas of Pakistan has been significant in bringing about this relative improvement. During the operation, domestically oriented terror groups have been targeted with full military might. Director General (DG) of Inter Services Public Relations (ISPR), Lt. Gen. Asim Saleem Bajwa, claimed, on December 12, 2015, that since the launch of the operation “3,400 terrorists [were] killed, and 837 hideouts from where they were carrying out their terrorist activities [were] destroyed... Success came at a heavy price as 488 valiant officers and men of Pakistan Army, FC [Frontier Constabulary] KP [Khyber Pakhtunkhwa] and Bolan and Sindh Rangers sacrificed their lives, while another 1,914 were injured.”

   Most recently, on April 3, 2016, ISPR claimed that SFs had ‘cleared’ 4,304 square kilometers of area in the North Waziristan Agency of FATA and “restored the writ of the Government in all areas especially in remote areas of FATA.”

   Despite the rhetoric of "not discriminating among terror groups", however, Pakistani Forces have carefully avoided inflicting any harm on terrorist formations which serve perceived ‘state interests’. Islamabad’s policy of selective targeting of terror groups leaves the environment that breeds terrorism intact. The Human Rights Commission of Pakistan (HRCP) in its annual report released in March 2016 thus observes:

   The year 2015 could be flagged as one in which Pakistani state took some definitive steps to recover its lost writ in places as diverse as rugged mountainous Federally Administered Tribal Areas (FATA) and thickly populated and crime-infested Karachi... The military crackdown on some of the militant groups sheltering in the country's northwestern tribal areas brought terrorist attacks down by almost half... Plainly the war was not over yet. Ending extremism required that there should be no pick and choose... .

   Crucially, as SAIR has repeatedly emphasized, Islamabad continues to allow terrorist groups serving its supposed strategic interests in neighboring Afghanistan and India to operate with impunity from its soil. In the most recent and brazen move, Lashkar-e-Taiba (LeT) founder and Jama’at-ud-Dawa (JuD) 'chief' Hafiz Muhammad Saeed reportedly set up a Sharia’h (Islamic law) court in Lahore to dispense "speedy justice", taking up citizens' complaints and issuing summons carrying a warning of strict action in case of non-compliance. This is the first instance of such a parallel judicial system to be established in the Punjab province. JuD claimed the ‘court’ only offers arbitration and resolves disputes in accordance with the Islamic judicial system, but failed to justify the summons. The impunity with which Saeed operates clearly confirms the support he receives from the Pakistani establishment. Saeed is the mastermind of the 26/11 attacks in Mumbai (India) and in 2012 the United States (US) put a USD 10 million bounty on his head. 

   Further, despite repeated US calls to target the Haqqani Network – one of the most vicious terrorist formations operating from Pakistan into Afghanistan – in Operation Zarb-e-Azb, no visible action in this direction has been taken thus far. Significantly, according to an April 13, 2016, report published by the US National Security Archive, "a series of DIA cables (from January 11, 2010, and February 6, 2010) show that some funding for Haqqani [Haqqani Network] attacks are still provided by the Pakistan Inter-Services Intelligence Directorate, including $200,000 for the December 30, 2009, attack on the CIA facility at Camp Chapman." At least 10 people, including two female American CIA agents, Jennifer Lynne Matthews, who commanded the base; and Elizabeth Hanson, a targeting analyst; were killed in the attack.

   Meanwhile, the genuine grievances of people across Pakistan are being brutally suppressed. Specifically referring to Karachi (Sindh) and Balochistan, the HRCP report observed

   And while statistics suggested that things had improved in Karachi after the paramilitary operation in the country's biggest city, little attention was paid to complaints of rights violations at the hands of the security forces ... In Balochistan growing concerns related to enforced disappearances, extrajudicial killings, and torture remained unaddressed.

2. The SATP assessment concludes:

   The aid given to Pakistan to help US in its war on terror has long been misused by Islamabad to help terror groups subservient to its policy of exporting terrorism. Despite nearly 2,381 US troops, another 1,134 International Security Assistance Force personnel, and tens of thousands of Afghans killed as a result of this strategy by Pakistani proxies, the US and the ‘international community’ have failed consistently to hold Islamabad to account even for the money it receives from the West, purportedly to fight terrorism.

   Pakistan continues to operate under the cover of global impunity, even as terrorism emanating from its soil targets the world community, mainly neighboring Afghanistan and India. The blowback of this policy of export of terror has brought untold misery upon the people of Pakistan, but the country’s establishment appears to continue to consider this an acceptable price to pay for its myopic ambitions.

3. The SATP’s most recent assessment for Khyber Pakhtunkhwa[6] states:

   [6] South Asia Terrorism Portal, Khyber Pakhtunkhwa Assessment - 2015, available at accessed 21 December 2016

   At least 22 Shias were killed and another 50 were injured when a three member suicide squad attacked an Imambargah (Shia place of worship) in the Phase-5 locality of the Hayatabad area in Peshawar, the provincial capital of Khyber Pakhtunkhwa (KP), on February 13, 2015. As the entrance of the Imambargah is heavily guarded, the terrorists dressed in Police uniforms entered the Imambargah from the other side of the mosque, cutting through barbed wire, and carried out the attack when around 800 worshippers were offering Friday prayers. Of the three suicide bombers who entered the mosque, only one was able to blow himself up. A second was killed by Security Force (SF) personnel, while the third was arrested in an injured condition.
   Tehreek-e-Taliban Pakistan (TTP) ‘spokesperson’ Muhammad Khorasani claimed responsibility for the attack declaring, “It is the revenge of Dr. Usman who was hanged for attack on the Army’s headquarters.” Earlier, on August 19, 2013, Asmatullah Muavia, Ameer (chief) of the Punjabi Taliban, had warned, “Aqeel alias Dr. Usman is our Mujahid and we would never let our Mujahid be hanged”. Mohammed Aqeel aka Dr. Usman was among the two convicted terrorists who were hanged at the Faisalabad District Jail in the night of December 19, 2014. After the December 16, 2014, Peshawar Army Public School (APS) carnage, in which 134 school children, ten school staff members, including the Principal, and three soldiers were killed, the Government on December 17, 2014, decided to end the moratorium on executions in the country, which had been in place since 2008, when then President Asif Ali Zardari imposed the unofficial moratorium. Since the end of the moratorium, at least 24 prisoners have been executed, including at least two with no connection to terrorism.
   At least 55 persons, including 36 civilians, 15 terrorists and four SF personnel, have already been killed in KP in terrorism-related violence in 2015 (till February 15), according to partial data compiled by the South Asia Terrorism Portal (SATP). During the corresponding period of 2014, terrorism-linked fatalities stood at 156, including 103 civilians, 41 SF personnel and 12 terrorists, indicating a decline of 66 per cent.  
   KP has recorded a continuous decline in fatalities, year on year, since 2010, with the exception of 2013. Fatalities through 2014 stood at 617, including 406 civilians, 108 SF personnel and 103 terrorists; as compared to 936, including 603 civilians, 172 SF personnel and 161 terrorists in 2013.
   Other parameters of violence, such as major incidents, suicide attacks and explosions also remained low through 2014. The Province accounted for 49 major incidents of violence (each involving three or more fatalities) resulting in 436 deaths in 2014, as against 65 such incidents, accounting for 694 fatalities in 2013. As against 21 suicide attacks in 2013, in which 350 persons were killed and another 635 were injured, 2014 registered nine attacks resulting in 196 deaths and 260 persons injured. Similarly, there was a considerable decrease in incidents of explosion. In comparison to 189 blasts resulting in 598 fatalities in 2013, 2014 recorded 109 blasts resulting in 354 fatalities. Though the number of incidents of sectarian attack in 2014 was the same, at nine, as in 2013, the resultant fatalities decreased from 51 in 2013 to 18 in 2014. The number of such incidents and resultant fatalities stood at 10 and 58 respectively in 2012; one incident and 11 fatalities in 2011; and 12 incidents and 139 fatalities in 2010.
   Violence was recorded in 22 of KP’s 25 Districts in 2014, an improvement over 2013, when violence was reported from all 25 Districts. As in 2013, Peshawar, the provincial capital, remained the worst affected District through 2014, recording 169 terrorism-related incidents, in which 348 people were killed and another 482 were injured.
   The Investigation Wing of KP Police confirmed, on November 25, 2014, that terrorist attacks had recorded a decrease in 2014, as compared to 2013. According to the Police, the total number of terrorist attacks declined to 438, as against 468 reported during the corresponding period in 2013. 10 incidents of suicide attack were recorded in 2014, down from 18 such attacks in 2013.
   While these numbers alone suggest an improvement in this lawless region of Pakistan, a range of compounding factors indicate that stability and state control remain as elusive as they were in earlier years. Indeed, as against 210 incidents of killing in 2013, there were 358 such incidents in 2014. More worryingly, 2014 witnessed the Peshawar carnage, one of the worst and most “barbaric act of terror” in Pakistan. This single attack demonstrated that though the fatalities in the Province had declined due to various reasons, the terrorists retained the motivation and wherewithal to execute devastating attacks and, indeed, that they were willing to cross over into levels of viciousness that they had not employed before.
   Reacting to the December 16 Peshawar attack, the KP Government enacted three special laws: the KP Restriction of Rented Buildings Act (2014) is to provide mechanism for monitoring the business of rented buildings for the purposes of counter-terrorism and effectively combating crime in the Province; KP Restriction of Hotel Businesses Act (2014), to provide mechanisms for monitoring the business of hotels and guests staying in the hotels for the purposes of counter-terrorism and effectively combating crime; and the KP Sensitive and Vulnerable Establishments and Places (Security) Bill (2014), to curb the terrorist activities and to provide for the security of sensitive and other vulnerable establishments and places. The passages of these three Bills had been pending since February 2014.
   On January 14, 2015, in a bizarre response to the Peshawar massacre, the KP Government granted male teachers permission to carry licensed weapons in school. Acknowledging the Government's inability to station Police at all of KP's more than 30,000 schools, Chief Minister Pervez Khattak, asked the schools to make some security arrangements on their own.
   Earlier, on January 5, 2015, the KP Government announced a PKR 10 million reward for information leading to the arrest or death of TTP 'chief' Mullah Fazlullah. Inter-Services Public Relations (ISPR) Major General Asim Bajwa, at a media briefing at the General Headquarters on February 12, 2015, had asserted that Mullah Fazlullah was the ‘mastermind’ of the December 16 attack.
   These steps are no more than notional, given the capacities and morale of the Police Force in the province. According to SATP, at least 664 Policemen have been killed in KP since 2006. KP Police Chief Nasir Khan Durrani on December 10, 2014, observed, "More than 1,100 KP Police officers and men have sacrificed their lives in this war against terror [during the last one decade]. It is, therefore, impelling that the preparedness and capacity of Police Department is enhanced to enable it in dealing with the challenges of terrorism in a more professional and effective manner".
   Through 2014, 66 Policemen were killed in 48 incidents, in addition to 91 Policemen killed in 89 incidents in 2013. In the worst attack on Policemen in 2014, a suicide bomber in the Sarband area of Peshawar blew himself up, killing 11 Policemen and injuring another 45. In the latest of series of such attacks, on February 3, 2015, unidentified terrorists shot dead five Customs officials patrolling overnight in the Kohat District, KP. A day earlier, two Policemen, including an Additional Station House Officer (SHO), were killed in an explosion near the Lorry Adda area of Mansehra District. The explosion took place when a convoy of vehicles escorted by a Police van set off for Gilgit Baltistan.
   Little can be expected from the Federal Government as well, given the steps that were taken in the aftermath of the Peshawar attack. Islamabad has chosen to intensify selective operations against domestically oriented terrorist formations, even as it continues to support a range of terrorist groups operating against Afghanistan and India, or who support ‘global jihad’. Unfortunately, these distinctions are far from sustainable, as most state sponsored groups in Pakistan maintain some contact with the anti-state formations and, crucially, share a common ideology with these. Eventually, as long as any such groups are allowed to flourish – and, indeed, are supported by state institutions – at least some of them will break away from their masters in the establishment and target state institutions. Incipient evidence of the entry of the even more radical Islamist State (IS) ideology and networks in the region can only constitute an even greater danger for Pakistan. Indeed, the Government of the neighbouring province, Balochistan, in a 'secret information report' dated October 31, 2014, conveyed to the Federal Government and law enforcement agencies a warning of increased footprints of IS. The report disclosed that IS had claimed to have recruited 10,000 to 12,000 followers from the Hangu District of KP and Kurram Agency of the Federally Administered Tribal Areas (FATA). According to a September 23, 2014, report, moreover, terrorists supporting IS distributed hundreds of pamphlets in Afghan refugee camps and madrassas (seminaries) in Peshawar and other regions of KP. The pamphlets read, “Every Muslim must follow the orders of Caliph and should contribute in whichever capacity he or she can to assist the Islamic State against Taghoot (those who transgress limits of Islam).”
   Unfortunately, however, Pakistan’s duplicity on the issues of Islamist radicalization and terrorism continues.

4. In relation to internal relocation, the DFAT report referred to above states:

   Options for internal relocation
   5.18 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.

   5.19 The population of Lahore grew from 6.3 million people in 1998 to almost 10 million people in 2014. Compared to many other cities in Pakistan, Lahore remains relatively ethnically homogenous and is majority Punjabi. However, the city’s demographics continue to change with ongoing internal migration processes. Approximately one million Pashtuns have migrated to Lahore since the 1980s, for example. The security situation in Lahore remains better than many other places in Pakistan, with lower levels of generalised and sectarian violence than many other major population centres. The Pashtun community in Lahore has told DFAT its members feel safe and do not feel threatened by sectarian violence. Shias in Lahore have similarly told DFAT the security situation has improved because of Operation Zarb-e-Azb.

   5.20 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.

   5.21 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.

1. In relation to the question of internal relocation, the most recent UK Home Office report on the security and humanitarian situation in Pakistan[7] states:

   2.6 Are those at risk able to internally relocate within Pakistan?
   

   [7] United Kingdom Home Office, Country Information and Guidance Pakistan: Security and humanitarian situation, Version 1.0, November 2015, available at accessed 21 December 2016

   2.6.1 Pakistan is a large country with a population of nearly 200 million. A person who has a localised threat on the basis that they are perceived to be collaborating with the Pakistani authorities, or to be acting against the Taliban or other militant groups, or because of the general security situation in that area, may be able to relocate to an area where that localised threat does not exist. However, the Pakistan Taliban and other militant groups may reach persons outside of those areas, depending on their profile and the area in which the person resides (see Nature and levels of violence). Where internal relocation is suggested, decision makers must also consider accessibility of the intended place of relocation.

2. Another UK Home Office report on the threat posed by the Taliban and other militant groups in Pakistan[8] provides this policy summary:

   While simply living in an area occupied by the Pakistani Taliban or other militant groups does not give rise to a protection need, a person may face a real risk of mistreatment/persecution/ harm on the basis of their individual circumstances. This will depend on the particular profile of the person, the nature of the threat and how far it would extend.
   Risks might be heightened for political and/or tribal leaders, members of the security forces, or religious minorities, but ordinary Pakistanis, including students and those perceived to be opposing the Taliban have also been targeted. The risk will be highest in areas where those armed anti-government groups are operating or have control.
   

   [8] United Kingdom Home Office, Country information and guidance report: Pakistan: fear of the Taliban and other militant groups, 16 July 2014, available at accessed 21 December 2016

   For a person who can demonstrate a well-founded fear of persecution because of their imputed political opinion and who is unable to acquire a sufficiency of protection or relocate internally, a grant of asylum will be appropriate.

3. The report also states:

   1.3.1 Simply living in an area occupied, either wholly or partly, by the Pakistani Taliban or other militant groups does not give rise to a protection need. In general the risks from the Pakistani Taliban or other militant groups will depend on the particular profile of the person, the nature of the threat and how far it would extend.

   1.3.2 Primary targets include political and/or tribal leaders, security forces and minority religious groups. However, ordinary Pakistanis, including students and those perceived to be opposing the Taliban and other militant groups or not following sharia law, have also been subjected to violence by these groups. The risk will be highest in areas where those armed anti-government groups are operating or have control. Those main areas are:

   ·    Khyber-Pakhtunkhwa (formerly known as North West Frontier Province),

   ·    the semi-autonomous Federally Administered Tribal Areas (FATA) that have a strong Taliban presence; and

   ·    Baluchistan, where separatists are seeking greater political autonomy and control over local mineral resources.

   The Pakistani Taliban and other militant groups do however have reach outside of those areas.

   1.3.3 Where decision makers conclude that the person is at real risk of the Pakistani Taliban or other militant groups then they need to identify the reason, but in general it is likely to be for reasons of (imputed) political opinion.

4. The current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan[9] state:

   In the last year sectarian violence targeting the Shia minority, including through attacks on Shia processions and religious gatherings and sites, reportedly continued. Such attacks were carried out predominantly in the North-West of the country – including in Dera Ismail Khan, Hangu,  Kohat and Tank districts of Khyber Pakhtunkhwa province, and Kurram and Orakzai Agencies in FATA – as well as in urban centres throughout the country – including Gilgit (Northern Areas), Lahore (Punjab province), Karachi (Sindh province) and Quetta (Balochistan province). Sectarian violence has resulted in hundreds of deaths and large-scale displacements from Kurram. Tensions and clashes between Shia and Sunni tribes in Kurram Agency kept the main road linking the region to the rest of the country blocked throughout 2010 and 2011 (with the exception of a brief reopening in February 2011), thereby impeding access to provisions as well as healthcare services. Incidents of violence against the Shia minority continued in 2011 in Pakistan's Kurram tribal agency, despite an alleged peace deal between the Taliban and Shia tribes in the area brokered by Pakistani security forces in February 2011. By October 2011, over 100 Hazara Shias were reportedly killed in targeted attacks in Balochistan province alone and large numbers were reported to be fleeing the province. Law enforcement authorities are reportedly unable or unwilling to protect members of religious minorities, including Shias. Sunni militant groups, such as the banned Lashkar-e Jhangvi, reportedly operated with impunity, including in areas where State authority is well established, such as Punjab province and Karachi.

   In light of the foregoing, UNHCR considers that members of the Shia community, particularly those in areas where Taliban-affiliated groups are active, such as the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion and/or (imputed) political opinion.

   [9] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14 May 2012, HCR/EG/PAK/12/02, pp.36-41, available at: accessed 1 December 2016

5. In relation to the question of internal flight or internal relocation alternatives (IFA/IRA), the UNHCR report states[10]:

   [10] Ibid, pp.42-43

   In the context of Pakistan, an IFA/IRA will generally not be available in areas of FATA, Khyber Pakhtunkhwa, as well as Balochistan province, which are currently affected by sustained security and military counter-insurgency operations and retaliatory militant attacks. The availability of an IFA/IRA outside these areas needs to be assessed individually, on the basis of the framework detailed in these Guidelines. Areas considered relatively stable may, nevertheless, be inaccessible in instances where access roads to and from such areas are considered insecure.

   Given the wide geographic reach of some armed militant groups, a viable IFA/IRA will generally not be available to individuals at risk of being targeted by such groups. The operational capacity of certain militant groups, such as the Lashkar-e-Jhangvi and Sipah-e-Sahaba Pakistan, extends far beyond FATA or the Khyber Pakhtunkhwa province as evidenced by high-profile attacks, such as suicide bombings, countrywide, particularly in urban centres. Furthermore, some non-State agents of persecution, such as local powerbrokers, organized criminal elements, as well as armed militant groups, reportedly have links to or are closely associated with influential actors in the local and central administration, law enforcement and/or judiciary. As a result, they often operate with impunity and their reach may extend beyond the area(s) under their immediate control.

   An IFA/IRA will generally not be relevant where there is a reasonable likelihood that the individual concerned would be subject to criminal prosecution under Pakistan’s blasphemy and/or anti-Ahmadi laws.

   For categories of individuals who fear harm as a result of religious norms of a persecutory nature or harmful traditional practices – such as victims of or individuals at risk of forced marriage, forced conversion or honour crimes – and for whom an internal relocation to another part of the country may be relevant, the endorsement of such norms by large segments of society and powerful conservative elements in the local administration needs to be taken into account.

   Whether an IFA/IRA is reasonable must be determined on a case-by-case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation at the time of the decision. To this effect, the following elements need to be taken into account: (i) the availability of basic infrastructure, access to essential services, such as sanitation, health care and education, as well as food security in the prospective area of relocation; (ii) the availability of traditional support mechanisms, such as relatives and friends, in the area of prospective relocation; (iii) the ability of the displaced individuals to sustain themselves, including livelihood opportunities; (iv) the presence of landmines and unexploded ordnance; (v) the criminality rate and resultant insecurity, particularly in urban areas; as well as (vi) the scale of displacement in the area of prospective relocation. In urban centres, the growing pace of rural-urban migration is reportedly placing increased pressure on basic facilities and services, including access to education, employment, housing, clean drinking water and sanitation. This is accompanied by increasing crime rates.