1512208 (Refugee)

[2016] AATA 3242

1512208 (Refugee) [2016] AATA 3242 (3 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512208

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Glen Cranwell

DATE:3 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 03 February 2016 at 12:46pm

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] January 2013 and the delegate refused to grant the visa [in] May 2014.

3. The applicant appeared before the Tribunal on 3 February 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.

   RELEVANT LAW

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.

   Refugee criterion

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. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

    Relocation

16. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-41. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

17. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Complementary protection criterion

18. 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’).

19. ‘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.

20. 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.

    Relocation

21. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

22. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Section 499 Ministerial Direction

23. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.  This material includes:

    ·application for protection visa;

    ·statutory declaration of the applicant dated [in] December 2012;

    ·record of entry interview;

    ·copies of the applicant’s passport, police clearance certificate, birth certificate, character certificate, education certificates and identification card;

    ·recording of interview with delegate;

    ·statement of applicant dated 29 April 2015;

    ·representative’s submissions dated 30 April 2015;

    ·bundle of newspaper and other reports;

    ·representative’s submissions dated 25 January 2016;

    ·copy of the applicant’s identity card.

25. The applicant claims to be a Pakistani national.  Based on the copy of his passport, the Tribunal finds that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

26. The applicant’s claims are summarised in his statutory declaration provided to the Department:

    I make this Statutory Declaration in support of my application for a Protection visa. I am [an age] year old citizen of Pakistan. I am a Shi'a Muslim. I am a Pashtun of the Turi tribe

    I was born in Parachinar and lived there my entire life except for a period of 2 and a half years when I went to study in Parachinar [Peshawar]. My family continues to live in Peshawar [Parachinar]. My father passed away in [year] of a [medical condition].

    There is a war in Parachinar. It started in 2007. The Taliban wanted to use Parachinar as a safe haven for themselves and so that they could travel easily between Afghanistan and Pakistan. The Shi'a Turi people in Parachinar refused to allow the Taliban to take over and we have been trying to defend our city and ourselves since this time.

    The Taliban hate Turi people. They know that we are against them and they think we are criminals because we will not support them and because they think we are kafir. The Taliban want to kill all Turi Shi'a people.

    I have never been employed. I have studied since I was about 7 years old and have been able to complete my [course]. When I finished college I went to live in Peshawar in order to complete my [further course] between about [year] and [year].

    Peshawar was very dangerous. There were many Shi'a students captured by the Taliban and never seen again. Living there was like being in detention. It was not safe to leave the hostel and so I did not go out unless I had to.

    Because of the war the road out of Parachinar is very dangerous. There is only one main road and it goes to Peshawar. It has been blockaded by the Taliban. It is very dangerous for Turi Shi'a people on the road as we are targeted and killed by the Taliban. The Taliban murder Shi'a people and throw acid into the faces of Shi'a female students who travel on the road. You never know if your life will be taken.

    When I was Peshawar I travelled back once a year to visit my family. The first time the trip took about 15 hours because I had to travel using a government convoy. This was very frightening. I was abused by people on the road for being Shi'a and I was terrified that we would be attacked as other government convoys have been.

    In about July 2010 I was travelling home back from Peshawar. The road was blocked by the Taliban and so I was forced to travel through Afghanistan. When I was near [an Afghan town] I was captured by the Taliban with about three car loads of people. I think there were about [number] people who were captured. I was held by the Taliban for about 5 hours. They verbally abused me and called me swear words. They said I was not a true Muslim. They terrified me by firing their guns into the air. I was finally released when I paid them 50,000 rupees as they demanded. 444

    In about 2011 when I was [in] Peshawar I was given a UNHCR Ration Card. The Ration Card is usually given to people who do not havee homes and are displaced however the government labelled Parachinar as war [affected] area and so people from Parachinar were able to obtain a Ration Card as well. Once a month I would go the Ration Centre to collect food and groceries. On the second time I went to the Ration Centre some people who looked liked Taliban stopped me as I was going back to my hostel at the [college]. They threatened me. They called me a Shi'a `kafir' which means infidel. They said you are from Parachinar and you are not Muslim. They said that if I dared to return to the Ration Centre they would kidnap me and kill me. I was terrified and never went back.

    I returned to Parachinar after I finished my study in [year].

    The situation in Parachinar is very violent. There are many bombings, shootings and kidnappings. Shi'a people cannot practice our religion freely and without fear. Every time we go to the mosque especially for Muharram, we are expecting to be killed by another attack.

    Because the Taliban have control over the only main road in and out of Parachinar and so there is a shortage of food and other essentials like medical supplies. My family and I could not move outside of Parachinar safely in order to obtain food and medicine or medical treatment. The areas surrounding Parachinar are under Taliban control. The Taliban attack people who are trying to bring supplies into Parachinar. Shi'a and Turi people in Parachinar are very isolated and are denied the basic things we need in order to survive.

    On about [a date in] February 2012 there was a bomb blast which happened in Parachinar city in Khar Bazaar. I was very close to the blast however I was lucky and I was not injured. I went to help people who were injured. There were many people who had lost limbs. There were people without hands and legs. There was a lot of blood and screaming. This incident affected me very badly as I was only a few seconds away from being hurt badly or killed. I have not been able to stop thinking about this. I realised that if I stayed in Pakistan any longer I would be killed.

    If I am forced to return to Parachinar I have no doubt that I would be killed. Shi'a and Turi people are being targeted in bomb blasts and shootings. If I was forced to return I could not practice my religion without fear of being killed. I recently practiced Muharram in Melbourne and this has been the first time in my life that I have been able to do this without fear of being killed.

    I could not move freely if I was sent back. I could not move outside without risking my life. I could not access adequate food or medication and I could not travel safely outside of Parachinar in order to get medical treatment. Parachinar is a small agency and not all essential services are available there. I have studied for most of my life. The Taliban regularly kidnap and kill students. They do not like people being educated unless it is in one of the Taliban's religious schools. The Taliban in particular do not like Shi'a Turi people being educated. The Taliban know we are against them and think that we support the west. They think that schools are western and so they attack educated people and students because they see us as traitors.

    The goverment of Pakistan has shown that they cannot protect me. They have not done anything to protect Shi'a and Turi people and there is nothing to say that this situation will change. Even during the last Ashura ceremony there were many bomb blasts throughout Pakistan attacking Shi'a people. The government could not do anything to stop this.

    I cannot relocate anywhere in Pakistan including Islamabad. I am Shi'a. This will not change if I am in Parachinar, Islamabad, Karachi or anywhere in Pakistan. Shi'a people are targeted, attacked and killed everywhere in Pakistan. For me the situation is worse because I am Turi. Everyone knows that we are against the Taliban and we have been labelled as traitors. We have been linked to the west for this reason. As a Turi person, I am hated by the Taliban and their supporters more than other Shi'a people. My name shows that I am Shi'a. My accent and my identity card show that I am from Parachinar. It will be easy for anyone in Pakistan to know that I am Turi Shi'a from Parachinar and I am scared I will be at risk of being hurt and killed for this reason anywhere in Pakistan.

    I cannot move anywhere where there are not many Shi'a people however these are the areas that are being targeted by the Taliban and other anti Shi'a groups. As soon as Shi'a people flee to one area and make a community there, that area is targeted. There is therefore nowhere I could live safely.

    The security situation throughout Pakistan is very bad. Even in Islamabad where the government is meant to be in control, they are being attacked by the insurgents. There is no area in Afghanistan which is safe for me to relocate to.

    I have never been employed. I do not know how I would find work. I do not have any family outside of Parachinar and I have no familiarity with Pakistan outside of Parachinar and Peshawar. I will have no one to protect or support me and I do not know the country at all. Turi and Shi'a people find it difficult to obtain work and housing. People do not want to assist us. I will need to show my identity card in order find work and a house and I will be recognised as Shi'a Turi. We are discriminated against throughout Pakistan and this will make it more difficult for me to be able to survive.

    For the reasons I have explained, I respectfully ask that Australia provide me with protection.

    [bracketed portions are handwritten additions appearing on original document]

1. The Tribunal, as previously constituted, made the following findings in relation to whether the applicant had a well-founded fear of persecution and could access state protection (footnotes omitted):

   Well-founded fear of persecution

   The applicant has made a number of claims throughout his application as to grounds on which he has a well-founded fear of persecution. These include:

   a.     Race – Pashtun/Turi

   b.     Religion – Shia

   c.     Particular Social Groups – Turi/his home region/Shias

   d.     Imputed anti-Taliban political opinion (because he is from his home region/Turi/Shia)

   e.     Imputed anti-LeJ political opinion (because he is Shia)

   Past harm

   The applicant claims to have experienced three past incidents. In 2010, he was held by the Taliban when travelling through Afghanistan back to his hometown from the city in which he studied university – but was released unharmed after paying money. He was spoken to degradingly about his faith and threatened on the first occasion he sought to access rations from the UNHCR in the city where he [lived] in 2011, after that incident, he did not seek further rations. He was close by to a bomb blast at a Mosque in his hometown in 2012. The applicant provided generally consistent and detailed accounts of these events. The events are generally consistent with available country information (set out in more detail below in paragraphs 19 & 20). In particular the country information supports his claim he had to travel through Afghanistan from the city where he studied to get to his hometown, because the Taliban had blocked the road between his hometown and that city. The Tribunal accepts these three events occurred as claimed. The Tribunal however does not consider any of the events to be serious harm when having regard to the non-exhaustive instances of serious harm in s.91R(2).

   Future harm

   The Tribunal is mindful it must consider the applicant’s risk of harm not only currently but into the reasonably foreseeable future.  In making its findings, the Tribunal has considered PAM3 Refugee and humanitarian - Refugee Law Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.

   As noted above, the applicant has made a number of claims for well-founded fear of persecution based upon his being from his home region, a Turi and a Shia, as well as particular social groups and implied political opinions arising from those characteristics that would make him a target of harm from the Taliban or LeJ or other Sunni groups. Regardless whether his claims are considered in terms of his ethnicity, imputed political opinion or membership of a particular social group, the Tribunal considers the issues under consideration are substantially the same. Related but also independent of those issues is his claims regarding his religion.

   The Tribunal discussed with him at the hearing his claimed race as a Turi. He clarified his correct family name was not Turi (as appears in his review application form). He explained Turi is his tribe. He confirmed the family name recorded on his passport, ID card and driver licence was not Turi. He confirmed too that his ID card (which the Tribunal did not have an English translation of) did not identify his place of birth or his religion. The Tribunal notes this is consistent with information in the DFAT report that ID cards do not record the sect of the holder. He was able to discuss with the Tribunal in some detail his clan and division within the Turi tribe as well as other clans and divisions of the Turi tribe consistent with available country information. The country information provided by the migration agent and both of the DFAT reports identifies the applicant’s hometown as one which has a majority population of Turi. The DFAT report and other country information too state Turi are a Pashtun tribe and that Turi are almost exclusively followers of Shia Islam. The applicant has provided consistent information regarding his race and religion. The applicant’s identity documents all consistently detail his address in his hometown. The Tribunal accepts the applicant is a Pashtun, a Turi and a Shia.

   The applicant and the migration agent provided a number of country information reports regarding violence in his hometown against Turi, particularly by the Taliban, but also between Turi and other Pashtun tribes who are followers of Sunni Islam. The DFAT reports state there is conflict between Sunni Pashtuns and Turi and between the Taliban and Turi in the applicant’s hometown. Elsewhere in the DFAT report, the Taliban insurgency in the FATA is identified as the most potent security threat in Pakistan. The DFAT Shia report states there are ongoing counter insurgency operations by the Pakistan military against the Taliban and other militants in the FATA. The DFAT Shia report assesses that Shias in the applicant’s hometown are at a high risk of both generalised and targeted violence. Elsewhere the DFAT Shia report states the situation in the FATA is very volatile. There have been high levels of communal violence between Sunnis and Shias, militant sectarian outfits remain very active and rival tribal/sectarian groups have attacked Turi at a high rate of frequency. The applicant’s hometown experienced a high degree of communal violence, including by the Taliban. Turi in the applicant’s hometown are more easily targeted for harm due to the concentration of Turi in the applicant’s hometown. The South Asian Terrorist Portal (“SATP”) contains information of multiple bomb blasts in the FATA including in the applicant’s hometown in 2014 and of a bomb blast in the applicant’s hometown in February 2012.

   As noted above, the applicant’s claims are generally consistent with information before the Tribunal from independent sources about events in his home region.  The Tribunal accepts that the Taliban and associated groups have waged a campaign of violence against Shias throughout Pakistan, and in particular, in the home region of the applicant.  The most recent period of conflict in the applicant’s home region began in 2007 in April 2007, when Sunnis attacked a Shia procession in the applicant’s hometown killing over 50 people. The International Crisis Group has argued that Sunnis carried out this attack after they were emboldened by the presence of the Taliban and their “hard-core brand” of Sunni ideology.  By 2009, fighting had claimed more than 1,500 lives, injured thousands more, and caused massive dislocation of residents.  It is widely reported the Shia residents of the applicant’s hometown during this period were subjected to frequent suicide bombings and targeted attacks, often perpetrated by the Taliban and had targeted the Shia community of the applicant’s hometown because they were involved in activities against the Taliban.  Sectarian violence has been reported to have declined significantly in the applicant’s home region. However attacks on Shias by the Taliban have reportedly continued over the past 12 months. The Tribunal accepts that the situation in the applicant’s home region remains volatile and unstable. The Tribunal also accepts that the situation in relation to the main road to the applicant’s hometown remains particularly unstable and it has frequently been closed because of attacks by militants, effectively resulting in the applicant’s hometown being cut off from the rest of Pakistan, resulting in acute shortages of items for daily use, including medicine and food.

   On the basis of the considerable evidence on the conflict in the applicant’s home region, the Tribunal accepts the overlapping reasons of race (Turi) and religion (Shia Muslim) are the essential and significant reason for the harm the applicant fears. Therefore his fear of persecution is for a Convention reason. Accordingly, the requirements of s.91R(1)(a) are met.

   Having regard to the non-exhaustive list in s 91R(2) of the type and level of harm that will constitute ‘serious harm’ for the purposes of s 91R(1)(b), the Tribunal accepts that the persecution feared by the applicant involves serious harm, including significant physical harassment or ill-treatment and a threat to his life or liberty. It follows that the requirements of s 91R(1)(b) are also met.

   In relation to the requirements of s 91R(1)(c), the Tribunal is satisfied from country information set out earlier that the feared persecution by the Taliban or other Sunni militant groups would involve conduct which is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicant for the overlapping Convention reasons of his race and religion. It follows that the requirements of s 91R(1)(c) are met in this case.

   On the evidence before it and in particular the country information regarding the situation for Turi in the applicant’s hometown, the Tribunal is satisfied the applicant has more than a remote or speculative chance and therefore has a real chance of serious harm for the overlapping Convention reasons of his race as a Turi and his religion as a Shia from the Taliban or other Sunni extremist groups, now or in the reasonably foreseeable future if he returns to his home region in FATA.

   State protection

   Given the threat to the applicant arises from a non-state actor, the Tribunal must consider whether the Pakistan authorities are able to provide an appropriate level of state protection.  The applicant has claimed the Pakistani authorities cannot and will not protect him.

   Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

   Country information provided by the applicant indicates that state protection from the Pakistan authorities nationwide is weak, unpredictable and vulnerable to significant corruption.

   The DFAT report states there is no effective state protection in the FATA. The Pakistan authorities are unable to exercise effective control and enforce the law due to attacks by the Taliban and other militant groups. Elsewhere the report states the Pakistan federal government’s influence in FATA has been extremely limited since 1947 and that the FATA is governed under customary laws and regulations. The DFAT report goes on to state the capacity of Pakistani police elsewhere in the country is limited by a lack of resources, poor training and equipment as well as political manipulation and a perception of corruption.

   The UNHCR guidelines for the protection of religious minorities in Pakistan states law enforcement authorities in Pakistan are unable or unwilling to protect members of religious minorities including Shias and that Sunni militant groups operate with impunity, including in areas where State authority is well established.   

   The US Institute of Peace reported in February 2014 that over the past decade, Pakistan has experienced a significant rise of violence in terms of frequency, scope and magnitude and that the violence is most concentrated along the Afghan border in the FATA. It reports that while FATA has been the most violent region in South Asia for over two decades, the incidence of violence in recent years has been unprecedented, both on a per capita basis and in absolute numbers with statistics between 2009 and 2013 revealing approximately 16,578 casualties as a consequence of sectarian strife, terrorist related activity, military operations and the US Predator drone campaign.  The Global Peace Index currently ranks Pakistan 154 out of 162 on the measure of peacefulness and the Global Terrorism Index rates Pakistan at number 3 out of 162, behind Iraq and Afghanistan.

   The SATP reported in February 2014 that FATA – often described as the most dangerous place on earth – registered a 40% decline in overall terrorism-related fatalities from 2,901 in 2012 to 1,716 in 2013.  SATP reports that fatalities declined principally due to Islamabad’s growing reluctance to continue with military operations in different agencies of FATA, noting that operations in some Agencies, including that of the applicant’s home town, remained suspended through 2013 as the government focused on talks with the Taliban.  SATP reports that the continuing successes of the US drones in eliminating the top terrorist leadership considerably weakened terrorist formations in FATA.  Although recorded fatalities in FATA during 2013 dropped against the figures from 2012, 133 major incidents were recorded in 2013 resulting in 1,534 deaths.  SATP reports that there were 235 fatalities in FATA between 1 January 2014 and 23 February 2014.

   Acknowledging that there has been some improvement in the security situation in FATA during 2013, the long-standing nature and seriousness of the sectarian violence together with the weight of the country information indicating that the authorities in Pakistan are struggling to contain that violence causes the Tribunal to accept that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his Shia religion and his Turi race if he returns to his hometown in his home region, now or in the reasonably foreseeable future.

2. The Tribunal respectfully adopts these findings, for the reasons set out therein.

3. There remains the question of whether the applicant will face less than a real chance of serious harm by relocating to a different part of Pakistan.  The Tribunal, as previously constituted, found that the applicant could escape the persecution which he fears by relocating to Lahore.  The Tribunal also notes that urban centres such as Islamabad and Rawalpindi have also been suggested in the country information as other areas in which people from the applicant’s home region have been able to relocate to.

4. The representative raised the following obstacle to relocation in his most recent written submissions (footnotes omitted):

   The Tribunal, as previously constituted, found that the applicant could relocate to Lahore. That finding was, in part, based on information contained within the DFAT Reports. However, we draw to the attention of the Tribunal, as currently constituted, that the decision of the previous Tribunal appears not to have taken into account the most current DFAT Reports at the time of its hearing and decision: see, inter alia, [11] where the Tribunal states that the most current DFAT Reports were dated 29 November 2013 & 18 December 2013. The date of the decision of the Tribunal, as previously constituted, was 24..June 2015, which is obviously after the 14 April 2015 DFAT Reports.

   The DFAT Country Report, Pakistan, 14 April 2015, .contained relevant information pertaining to Lahore:

   3.6 DFAT is aware of anecdotal reports that recent Pashtun migrants to Lahore have had difficulty obtaining Computerised National Identity Cards  (CNICs — see 'Documentation', below).

   ...

   Computerised National Identity Cards

   5.28 At least 87 million people in Pakistan possess CNICs (the Election Commission of Pakistan registered 86.1 people as voters on the basis of their CNICs for the 2013 general election) and they are the most common and widely used form of identification, including for access to government services. Although residents of the FATA have experienced difficulty obtaining CNICs in the past, NADRA has deployed mobile registration teams to the FATA to assist with registration and issuance of CNICs.

   5.29 Supporting documents required for a CNIC are a birth certificate (for a first time applicant), education degree (if applicable) and a copy of a relative's CNIC (in most cases father and mother). Illiterate citizens are exempt from age verification and therefore are not required to submit supporting educational documents.. Applications by residents of FATA  and the Provincially Administered Tribal Areas (PATA of Khyber Pakhtunkhwa and Balochistan) are reouired to be countersigned by Political Agents and Assistant Political Agents.

   5.30 Pakistan's new series of CNICs operate with embedded chips and are machine-readable with accompanying biometric information. The validity of CNICs is generally 10 years. Unlike Pakistani passports, CNICs do not include information about the bearer's religion.

   The above information is relevant because the applicant is Pashtun, he is from FATA and the Tribunal, as previously constituted, suggested that he could relocate to Lahore.

   Moreover, at the applicant's entry interview, he provided a copy of his Pakistani National Identity Card to the Department. He stated the following details:

   Issuing Authority: Nadra (Village Administrative office)

   Issued where: Parachinar

   Issued date: 2006

   Enclosed with these submissions is a copy of the applicant's Pakistani National Identity Card and its English translation, We note that his CNIC expires [in] [2017].

   "CNIC cannot be renewed from NADRA offices abroad". On the other hand, a National Identity Card for Overseas Pakistanis (NICOP) may seemingly be applied for, but:

   NICOP shall be valid for a period of seven years from the date of issuance. (Subject to notification by Interior Division). Notwithstanding the validity period of NICOP issued to a person, the same shall automatically become invalid upon the said person losing his or her eligibility to apply for NICOP under the Rules. The cardholder shall then be obliged to surrender his or her card.

   DAWN, Nicop cards being issued to Pakistanis in UAE, 26 April 2003, reports that:

   Speaking to a local newspaper, Consul-General of Pakistan, Amanullah Larik said

   The Nicop cards are in English and are valid until the card holder resides outside Pakistan. "Upon his/her return, the card will automatically become invalid," added Mr Larik.

   The applicant will therefore be required to -obtain a new CNIC. In addition to the DFAT Country Report, Pakistan, 14 April 2015, which states that "DFAT is aware of anecdotal reports that recent Pashtun migrants to Lahore have had difficulty obtaining Computerised National Identity Cards", the official website of NADRA (the National Database and Registration Authority, being the Authority responsible for, inter alia, CNICs) states in relation to the CNIC application process that:

   Residents of FATA/PATA will only be entertained at their native DAUs [Data Acquisition Units] and their forms will be attested by concerned PA/APA [Political Agent/Assistant Political Agent].

   According to the above country information, the applicant would be required to return to Parichinar to apply for a new National Identity Card. However, the applicant cannot return to his home area due to the real chance/risk of harm. On the other hand, it would be unreasonable for the applicant to live outside of his home area in Pakistan -without a valid National Identity Card because a National Identity Card is mandatory for, inter alia, voting, opening and operating bank accounts, obtaining a passport, purchasing vehicles and land, obtaining a driver licence, purchasing a plane or train ticket, obtaining a mobile phone SIM card, obtaining electricity, gas, and water, securing admission to college and ,other post­graduate institutes, and conducting major financial transactions. For the sake of clarity, there is no area in Pakistan where the applicant could relocate to because of the aforementioned reasons. For instance, there .are similar reports in Karachi to "the anecdotal reports that recent Pashtun migrants to Lahore have had difficulty obtaining Computerised National Identity Cards" - The News, 3 March 2015 (available at: states that:

   Besides, the Pashtun community of Karachi has been facing a number of other issues, he said. "It has become very hard for Pashtuns to get Computerised National Identity Cards (CNICs) from local offices of National Database and Registration Authority (NADRA). All this, despite the fact they have been living in the city for the past three to four decades now," said Razzaq.

1. The English translation of the applicant’s national identity card (CNIC) indicates that it expires [in] 2017.  The Tribunal considers this to be in the reasonably foreseeable future.

2. The most recent DFAT Country Information Report – Pakistan, dated 15 January 2016, makes the following comments on this issue:

   3.5 DFAT is aware of anecdotal reports of some Pashtun migrants in Lahore experiencing difficulties obtaining Computerised National Identity Cards (CNICs – See ‘Documentation’, below).

   …

   5.31 Supporting documents required to obtain a CNIC include a person’s birth certificate (for a first time applicant), education degree (if applicable) and copies of a relative's CNIC (in most cases father and mother). Illiterate citizens are exempt from age verification and therefore are not required to submit supporting educational documents. Applications by residents of FATA, parts of Khyber Pakhtunkhwa and Balochistan must be countersigned by Political Agents and Assistant Political Agents.  DFAT understands that to obtain a CNIC, applicants must return to their place of origin and register with the local administrative council.

3. As noted above, the Tribunal is required to take account of this report in accordance with Ministerial Direction No. 56.

4. The Tribunal notes that NADRA now offers online renewal of existing CNIC at its website, The steps for online renewal include:

   ·Provide the required personal details.

   ·Upload your photograph up to 5MB as per specifications defined in Photograph Tutorial

   ·Upload the supporting documents

   ·Submit the attester/verifier details.

   NOTE: Attester must be a (sic) authorized officer in case of CNIC. Provide details of two verifiers if applying for NICOP. Each verifier must be an adult with a valid CNIC/NICOP

5. Given the requirement for a CNIC to be attested by an authorised officer, the evidence before the Tribunal in relation to the attestation requirements for FATA residents suggests that a Political Agent or Assistant Political Agent would be required to attest to the applicant’s renewal application. Although not completely clear, it does not appear that the applicant could avoid returning to FATA by lodging an online renewal application as he would still be required to obtain the relevant attestation.

6. Based on the DFAT report and the other country information referred to in the representative’s submissions, the Tribunal finds that the applicant would have to return to Parachinar in the FATA to obtain a new CNIC.  As set out above, the Tribunal has found that it is not safe for the applicant to return to his home town in his home region in the reasonably foreseeable future.  It follows that the Tribunal finds that the applicant would not be able to renew his CNIC card when it expires in 2017.

7. The Tribunal does not consider it to be reasonable for the applicant to locate to another area in Pakistan – be it Lahore, Islamabad, Rawalpindi or elsewhere – without a current CNIC card.  As noted by the representative, a CNIC card is required for voting, opening and operating bank accounts, obtaining a passport, purchasing vehicles and land, obtaining a driver licence, purchasing a plane or train ticket, obtaining a mobile phone SIM card, obtaining electricity, gas, and water, securing admission to college and other post­graduate institutes, and conducting major financial transactions.  The Tribunal does not consider it reasonable for the applicant to relocate to an area where, within the next 2 years, he will not have access to these services.

8. The Tribunal notes in passing that CNIC are valid for a period of 7 years.  It may be in other cases, where an applicant has a greater period left to run on his or her card, that the Tribunal might be able to conclude that a return to Parachinar to obtain a new CNIC would not be required within the reasonably foreseeable future.  However, in the particular circumstances of this case, the Tribunal considers that the end of next year is a timeframe within the reasonably foreseeable future.

9. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Glen Cranwell
    Member