1514950 (Refugee)

Case •

[2017] AATA 2070

•

13 October 2017

1514950 (Refugee) [2017] AATA 2070 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514950

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:C. Packer

DATE:13 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 October 2017 at 7:16pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Ethnicity – Pashtun – Religion – Muslim Shia – Social group – Bangash tribe – Shia leadership family in Parachinar – Returnee from West – Actual/Imputed political opinion – Imamia Student Organisation member – Fear of Taliban, Sunni and extremist groups – Relocation reasonable

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 438

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. The applicant is a man aged [age], born in Pakistan and a citizen of Pakistan.

  2. The applicant arrived in Australia [in] December 2014, as a holder of a Student visa, and had travelled on a Pakistan passport issued [in] 2014 and valid to [2018].

  3. [In] February 2015 the applicant applied for a Protection (Class XA) visa.

  4. [In] March 2015 a student course variations (cessation of study) note was filed.

  5. [In] August 2015 the applicant attended an interview with a delegate of the Minister for Immigration.

  6. [In] October 2015 the delegate refused the application under s.65 of the Migration Act.

  7. On 4 November 2015 the applicant applied for review of the delegate’s decision.

  8. On 20 June 2017 the applicant attended a Tribunal hearing.

  9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

    Background

  10. The applicant’s protection visa application provided some basic background information. The applicant said he was born and raised in [Village 1 in] Parachinar, Kurram Agency in Pakistan. He also lived from September 2012 to July 2014 in Peshawar where he completed his [schooling]. He is a Pashtun and Muslim Shia from the Bangash tribe. He speaks Pashto, Urdu and English. He is single and has parents [and siblings] in Pakistan, and a brother in [Country 1]. At the hearing the applicant said the family continue to reside in Parachinar and the brother in [Country 1].

  11. Country information[1] shows that Pakistan is the sixth most populous country in the world with a population estimated to be around 193 million. Pakistan’s population is young, fast-growing, and rapidly urbanising. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). The FATA is comprised of 7 tribal agencies: Bajaur; Khyber; Kurram; Orakzai; Mohmand; North Waziristan and South Waziristan. Approximately half the population of Pakistan lives in Punjab province, with around 27 per cent living in Sindh, 13 per cent in Khyber Pakhtunkhwa and six per cent in Balochistan. Less than five per cent of the population lives in the FATA and the Northern Areas of Pakistan collectively. Pakistan is ethnically and linguistically diverse with the largest linguistic groups being Punjabis (45%), Pashtuns (15%), Sindhis (14%), Seraikis (8%) and Mohajir (7.5%).

    [1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, [ of claims

  12. The applicant claims to fear harm in Pakistan from non-state agents that include the Taliban and Sunni extremist groups and agents because:

    ·He is a young Muslim Shia and a Pashtun of the Bangash tribe, from [Village 1] close to Parachinar in the Kurram Agency.

    ·His father is an affluent and prominent Shia elder in Parachinar.

    ·He lived in Peshawar from 2012 to 2014 in order to study at [College 1]. At the college/hostel Sunni students harassed him because he was a Shia. At the college he joined the Imamia Student Organisation (ISO) for Shia students and became [an official] of the local ISO unit.

    ·At [College 1] he received two threatening phone calls that also demanded he cease work for the ISO.

    ·In February 2014 he was abducted outside the hostel and released when his father paid a ransom.

  13. The applicant claims he has a well-founded fear of returning to Pakistan arising from:

    ·Religion: He fears the Taliban, Sunni political and extremist groups or their agents will harm him because he is a Muslim Shia.

    ·Political opinion: He fears the Taliban, Sunni political and extremist groups or their agents will harm him because of his political opinion (actual or imputed) as an opponent of those groups.

    ·Political opinion: He fears the Taliban, Sunni political and extremist groups or their agents will harm him because of his past membership and activities in the Imamia Student Organisation.

    ·Membership of a particular social group of: the Bangash tribe; a well-known Shia leadership family in Parachinar; persons/asylum seekers who had lived outside Pakistan for a lengthy period and are considered Westernised.

    Evidence

  14. The evidence before the Tribunal includes the following material:

    ·The applicant’s Protection visa application form lodged [in] February 2015, which includes a statement dated [in] February 2015 that gives reasons for seeking protection in Australia.

    ·Identity documents including Passport pages, Pakistan National ID card, Domicile certificate, schooling documents.

    ·A reference from the Imamia Student Organisation dated [in] January 2015.

    ·A letter from [Organisation 1] dated [in] July 2016.

    ·The Protection visa decision record (‘delegate’s decision’) dated [in] October 2015, which is the subject of this review.

    ·The application for review, which has attached to it a copy of the delegate’s decision.

    ·Submissions dated 15 and 27 June 2017 and 9 October 2017 and country information therein.

  15. The applicant appeared before the Tribunal to give evidence and present arguments, on 20 June 2017. He explained at the start of the hearing that he wished to have the hearing conducted in English and he would use the interpreter only when he needed interpretation. The hearing proceeded and the applicant appeared to be fluent in English although at times he asked for interpretation including when he gave some evidence. The hearing was conducted with the assistance of an accredited interpreter in the Pashto and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation.

  16. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions (asked in English or after he asked the interpreter to interpret) and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.

  17. The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, was published after the hearing. The Tribunal brought the applicant’s attention to the report in a letter dated 26 September 2017. The letter also extracted parts of the report and indicated they may be of particular interest, as well as parts of reports by the FATA Research Centre Pakistan. A submission dated 9 October 2017 commented on the country information and provided additional arguments.

  18. The Department had not issued a certificate under s438 of the Act.

    Assessment of claims: credibility

  19. The applicant claims to be a national of Pakistan. I sighted his Pakistan passport at the hearing and partial photocopies were made. All the available evidence, including the applicant’s oral evidence and familiarity with Pakistan, supports his claim to be a Pakistan national. Pakistan is therefore the receiving country for the purpose of assessing the applicant’s protection claims and for assessing his claims against the complementary protection grounds.

  20. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept that he has the claimed identity: [Applicant’s name] born [in date]. I accept he is a practising Muslim Shia and a Pashtun. I accept, as shown by a Pakistan Domicile certificate, that he is from the Bangash tribe.

    The applicant’s family

  21. The applicant claims his father is affluent and prominent in Parachinar. But as I pointed out, at the delegate’s interview he had not said the father was prominent in the community. The applicant replied that a previous representative told him not to write about this in the application as he could discuss it at the interview but then the delegate did not ask him about the father. But as I next pointed out, it seems unusual that a representative would advise him to withhold information relevant to his case when filling in the application. Before the hearing the applicant produced to the Tribunal a letter from an organisation [dated] [in] July 2016 and this indicated the father was an active member and a well-known and respected elder representing [Village 1]. A Facebook page[2] shows the organisation represents Shia residents in the [Kurram Agency]. At the hearing the applicant explained he had asked his father to get the document and suggested it be in English, so that he could provide it to the Tribunal. At the hearing when I asked about the father’s activities in the home area, the applicant stated the father was a retired [worker] and was a member of [Organisation 1] who had spoken out against terrorism. A submission of 27 June 2017 submits the father [undertook certain activities] and so would be known to [the terrorists]. As well, the father financed the applicant’s study in Peshawar and then his travel as a student to Australia, which shows the family has been able to access significant sums of money over several years and may be considered affluent. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept that the applicant comes from a Shia Bangash family led by the father who is affluent and prominent in [Village 1] in Parachinar. But as the father is only a local elder who has undertaken local activities I do not accept that he would be well-known or prominent outside of the home area, Kurram Agency.

    [2] [Source deleted.]

  22. As I pointed out at the hearing, whilst the applicant says it is dangerous to live in Parachinar and particularly for his family- the parents [and siblings] continue to live there and had not been harmed. The applicant replied that they have nowhere to go and although they had not been directly affected by the terrorist bombs in Parachinar, other villagers had been killed and a [cousin] had been injured. In sum, I find that the applicant, father and family have not been personally targeted and harmed in their village or Parachinar by the Taliban, Sunni political and extremist groups or their agents.

    The applicant’s time as a student

  23. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept that he is well-educated having attended a [school] and then [at College 1] from September 2012 to June 2014. The applicant states that in the [college] of [number of] students, there had been up to [a number of] Shia students, and he had lived in a student hostel there with other Shia and Sunni students.

  24. The applicant claims that at both the local school and the [college] he had been a member of the Shia student group Imamia Students Organisation Pakistan (ISO). Country information[3] showed the ISO is the largest of the many Shia student, community and charity networks in Pakistan and that it functions as a feeder organisation for mainstream Shia parties. A letter dated [in] January 2015 from the ISO Peshawar Division indicates the applicant had been an active member of a local [unit] and [an official]. Country information[4] shows that false and fraudulent documents are prevalent and easily obtained in Pakistan. Nonetheless, the applicant has consistently detailed his activities in the ISO during his schooling, and country information[5] shows a majority of Shia students in Pakistan are ISO members and so it is not unusual for a Shia student to have joined the ISO. I accept that he had been an ISO member at his school in [Village 1] and [in] Peshawar and [an official].

    [3] DFAT Thematic Report – Shias in Pakistan, 15 January 2016, paragraph 3.21 (replaced by the September 2017 DFAT report which did not discuss the ISO)

    [4] DFAT Country Information Report Pakistan, 1 September 2017, paragraphs 5.43, 5.44

    [5] DFAT Thematic Report – Shias in Pakistan, 15 January 2016, paragraph 3.21 (replaced by the September 2017 DFAT report which did not discuss the ISO)

  25. In the application he indicated his tasks as [an official] of the college base had been to help organise gatherings, look after the stage for the festival and liaise with other students. At the hearing he said his tasks included organising meetings, religious gatherings, and strikes/rallies, as well as assisting members. He described being responsible for Shia students from some other colleges and overall he said he dealt with [number to number of] ISO members from his college and about a further [number of] members from other colleges. In sum, I accept the applicant had a profile in his college as a leader of Shia students and that as a result some Sunni students had behaved badly towards him and he had found it stressful as he claims. Nonetheless, his ISO unit had been small in number and his duties and tasks were local and low level, and I do not accept that his ISO activities gave him any political/religious profile in the wider community beyond the local college area at that time.

  26. The applicant claims that in the [college] he received an anonymous threatening phone call in December 2012 and a second call in February 2013, and the caller referred to him as an infidel and demanded he cease his ISO activities. At the hearing he explained his mobile number could have easily been found from the college or hostel and if he left his room he placed his phone number on the door so that he was easily contactable. He has consistently spoken of these phone calls and I accept he received two threatening calls during his time at the college from 2012 to 2014. Nonetheless, the calls by an unidentified person were few in number and afterwards the applicant continued to study and live at the hostel and he does not claim to have been subsequently harmed in the hostel or college.

    The abduction in February 2014

  27. The applicant claims he had been abducted by unknown men in February 2014 because he was a Shia from Kurram Agency known to be an ISO leader and the father was well-known politically in Parachinar. In his narrative one night he was bored and so went out of the hostel alone instead of in the usual group; when he had left the hostel alone [men] with covered faces blindfolded him and took him to a dark room; they knew he worked in the ISO and hit and kicked him; he was held for [a number of] days until the father paid a ransom and he was released at the place where he had been captured. At the hearing he stated that after the delegate’s interview he had asked the father how much ransom was paid and was told $[amount].

  28. In light of his evidence that the students always went out of the college/hostel in groups, it is difficult to accept the very great coincidence that the abductors had particularly planned to abduct the applicant and the only time he left the hostel on his own, the abductors just happened to be there waiting for him. Nonetheless, as I discussed at the hearing, country information[6] shows that organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan, and indeed kidnaps for ransom peaked in 2014. I cannot discount the possibility, therefore, that the applicant was abducted as he claims. But the circumstances of the abduction lead me to consider that the abductors had been waiting outside the college hostel in order to make an opportunistic kidnapping of any student who stepped out alone. I do not accept that the abductors knew the applicant or any of his personal or family details at the time he was taken. I consider the applicant had not been targeted for kidnapping but rather, had been in the wrong place at the wrong time.

    [6] The Express Tribune report Kidnappings for Ransom, 26 July 2012, [ Pakistan Forward article Kidnappings for ransom drop to new low in Pakistan, 2 September 2016, [>

    My findings are supported by the applicant’s subsequent return to the college and residence in another hostel in Peshawar in order to complete his studies. As I put to him, his quick return to Peshawar as a student suggests he did not really have a fear of future harm there. He replied he did have such a fear but he had convinced the family to allow him to finish his studies and make a bright future, and he had been very cautious on returning to Peshawar. However, in light of the foregoing I consider the family assessed that: the abduction had been opportunistic following the applicant’s poor decision to leave the hostel alone at night and did not show that he was being targeted by Sunni militants because he was from a Shia family prominent in distant Parachinar; as long as he undertook the usual precautions when outside the college/hostel he would not again come to the adverse attention of kidnappers. As well, I do not accept the two anonymous phone calls were linked to the kidnapping that occurred a year later.

    Conclusion - credibility

  29. Having considered the claims and evidence, I accept that:

    ·The applicant is a young Muslim Shia and a Pashtun of the Bangash tribe, from [a] village close to Parachinar in the Kurram Agency.

    ·His father is an affluent and prominent Shia in Parachinar.

    ·He lived in Peshawar from 2012 to 2014 in order to study at [a college]. At the college/hostel Sunni students harassed him because he was a Shia. At the college he joined the Imamia Student Organisation for Shia students and became [an official] of the local unit.

    ·At the [college/hostel] he received two threatening phone calls that also demanded he cease work for the ISO.

    ·In February 2014 he was abducted outside the hostel but quickly released when the father paid a ransom.

  30. Having considered the claims and evidence, I do not accept his claim that:

    ·He had been targeted for kidnapping for ransom because he was a Shia from Kurram Agency whose father was well-known politically in Parachinar, or because of his personal or family profile.

    Conclusion

  31. Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a young, single Muslim Shia and a Pashtun of the Bangash tribe, from [a] village close to Parachinar in the Kurram Agency. His family are affluent and currently live in the family home in the village. I find that the father is a member of the Shia organisation [Organisation 1] and a well-known and respected elder representing [Village 1], Parachinar. I find that the applicant was a student in Pakistan and he completed his studies in Peshawar where he lived in a hostel. I accept that at the college he had been harassed by Sunni students, he had held a position in the local Shia ISO, and received two threatening phone calls. I find that in February 2014 he had been opportunistically kidnapped for ransom in Peshawar and quickly released after the ransom was paid. I accept that he then returned to Parachinar for several months but he nonetheless returned to Peshawar in May and June 2014 to complete his studies. I find the family had been making preparations for him to leave Pakistan from late 2013 as his passport was issued [in] 2014. I find he travelled to Islamabad/Rawalpindi to sit [a] test [in] May 2014 and the family then completed arrangements for him to travel to Australia. He was granted a Student visa [in] December 2014, entered Australia [in] December 2014 and has now been here for almost three years.

  1. As I discussed at the hearing, he is a Pakistan national who departed Pakistan legally with a genuine Pakistan passport valid to [2018] and so he will be able to return to and enter Pakistan without difficulty.

  2. The applicant claims that he faces serious harm amounting to persecution from Sunni militants throughout Pakistan largely because of his profile as a single Muslim Shia and a Pashtun of the Bangash tribe from the Kurram Agency who in the past had held a position in the Shia ISO and who had returned from the West and whose father is a well-known and respected Shia elder in Parachinar. The applicant is a practising Shia man and so I cannot discount the possibility that he will be identified as a Muslim Shia anywhere he goes in Pakistan. The UNHCR assesses in a January 2017[7] report that “members of the Shi’ite community may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion, ethnicity, (imputed) political opinion, and/or other relevant grounds.” I have given due weight to the UNHCR assessment in that report and also note that it says an assessment will depend on the individual circumstances of each case. I consider that if the applicant returns to Pakistan he would first seek to return to the family home in [the] village close to Parachinar in the Kurram Agency. However, country information shows that Parachinar and the Kurram Agency have suffered some of Pakistan’s worst big impact terrorist attacks causing high casualties in 2017. The September 2017 DFAT report discusses the security situation in Kurram Agency and assesses:[8]

    DFAT assesses that Shi’a in the FATA typically face a low risk of sectarian violence overall, in the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the FATA. Prior to the attack in January 2017, Parachinar had experienced relative calm. However, as noted in the previous paragraph, three large-scale attacks targeted Shi’a in Parachinar in the first six months of 2017. These attacks killed more than 120 people and injured hundreds more, reflecting the ongoing risks faced by Shi’a in Parachinar.

    [7] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, [ September 2017 DFAT report at 3.65

  3. A report by the authoritative FATA Research Centre Pakistan[9] concerning the first quarter of 2017 said in part:

    The security situation in Kurram Agency, which is considered one of the most sensitive agencies in FATA due to its sectarian nature of conflict and its borders with three insurgency-stricken provinces of Afghanistan, remained disturbed during the first quarter (January-March) 2017. In total, 16 violent incidents, both of terrorism and counter-terrorism, were recorded in the agency.

    During this quarter, Munda Alizai, Sperkat, Ghwaz Gari, Ahmadi Shaman and Borki areas of the agency witnessed violence. However, Parachinar remained the most disturbed area as it witnessed two high profile sectarian incidents during this quarter.

    On 21 January 2017, an IED explosion ripped through a crowded marketplace leaving 22 people dead and 35 others wounded in Parachinar. While claiming responsibility for explosion, TTP-JuA spokesman said that the attack was launched to avenge the killings of Lashkar-e-Jhangvi (LeJ), a sectarian outfits, cadres. The attack was also claimed by Lashkar-e-Jhangvi al-Alami (LeJA). Likewise, on 31 March 2017, at least 23 people were killed while 100 others wounded in a suicide blast outside a mosque in Parachinar. These two incidents are indicative of heightened sectarian strains in the agency. Moreover, terrorists attacked civilians while employing the IEDs in Broki and Parachinar. Terrorists also targeted security forces on two occasions. A vehicle-borne improvised explosive device (VBIED) exploded near a security check post on 10 February 2017. However, no casualty was reported in the said incident. Furthermore, four terrorists were arrested in a cross border attack targeting the security personnel on 18 March 2017.[10]

    [9] The organisation states: “The FATA Research Centre (FRC) is a non-partisan, non-political and non-governmental research organization based in Islamabad. It is the first ever think-tank that specifically focuses on the Federally Administered Tribal Areas (FATA) of Pakistan in its entirety.”

    [10] FATA Security Report First Quarter 2017, [ extract provided to the applicant post-hearing

  4. A later report by FATA Research Centre Pakistan concerning the second quarter of 2017 said in part:

    The security situation in Kurram Agency remained tense during this quarter. Kurram is considered to be one of the most sensitive agencies in FATA due to its sectarian history as well as its contiguity with Afghanistan's volatile provinces of southeast, namely Paktia, Paktika and Khost. In total, 20 violent incidents, both of terrorism and counter-terrorism, were recorded in the agency, marking an increase of 25 percent.

    During this quarter, Gwanda, KhwanaKandao and Katwao areas in lower Kurram, kalachi areGudar, Punjabi Bazaar and Hazara Colony in Pachinar, Mundan, Yakha, ChormiDara areas of central Kurram remained the most disturbed areas of the agency.

    IS-K, TTP-Jamat-ul-Ahrar (JuA), TTP, Lashkar-e-Jhangvi-Almi on 12 occasions carried out terrorist attacks against civilians and security forces during the second quarter of 2017. On 7 April 2017, the political administration and security agencies issued a ‘red alert’ and beefed up security in the agency after receiving reports that suicide bombers and fighters of the militant Islamic State group had sneaked into Kurram Agency from across the Afghan border. Later on 24 June 2017, the same group claimed responsibility for a high profile attack in Parachinar in which 45 people belong to shia community were killed while 110 others were injured; illustrating the heightened sectarian strains in the agency. In another such attack, terrorist in an IED attack killed 14 civilian in Gudar area of Kurram Central Kurram Agency.[11]

    [11] FATA Security Report Second Quarter 2017, [ extract provided to the applicant post-hearing

  5. In sum, country information shows that: Kurram Agency is one of the most sensitive agencies in FATA due to its sectarian history as well as its contiguity with Afghanistan's volatile southeast provinces; terrorist groups have easily infiltrated and attacked civilian targets in the Agency; terrorist activities have significantly increased throughout the Agency in 2017. As well, the country information shows the high casualty attacks have been directed at the Shia community in Parachinar. Against this background of the targeting of the Shia community in and around Parachinar leading to 90 deaths and 245 injured in just six months, I find that in Parachinar in the Kurram Agency there is a real chance that the applicant being a Muslim Shia man from a local affluent and prominent Shia family, faces serious harm amounting to persecution from Sunni extremist groups for reason of his religion. However, a person has a well-founded fear of persecution if the real chance of persecution relates to all areas of a receiving country (s.5J). Accordingly, I have gone on to consider whether the applicant faces a real chance of persecution in all areas of Pakistan.

  6. At the hearing, I discussed the security and social conditions in Pakistan’s major cities but focussed on Islamabad with a population over two million and Lahore with over 10 million. I pointed out that the January 2016 DFAT report showed that Pashtuns have large communities in Pakistan’s cities. As well, Muslim Shias comprise up to 20% of Pakistan’s population and they reside throughout Pakistan including in major population centres, and Shia and Sunni communities are generally well-integrated. The September 2017 DFAT report does not change that broad assessment and states in part:

    Large Shi’a communities live in urban centres throughout Pakistan, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. Although some Shi’a live in enclaves in these cities, the Shi’a and Sunni communities are generally well integrated. [3.33]

    Large urban centres such as Karachi, Islamabad and Lahore tend to have ethnically- and religiously-diverse populations, and offer a level of anonymity for people seeking refuge from violence by non-state actors. [5.14]

  7. At the hearing, I discussed how Islamabad and Lahore are viable areas for the applicant to relocate to. The September 2017 DFAT report broadly shows that those cities continue to be viable areas for relocation:

    5.15     Lahore has a population of around 10 million people. While it remains a majority-Punjabi city, there are significant numbers of some other ethnic groups, particularly Pashtuns. There are few Hazaras or Turis in Lahore. While security incidents can occur—such as the 2016 Easter Sunday attack—the security situation in Lahore tends to be better than other areas. Representatives of the Pashtun community told DFAT that Lahore was safer for Pashtuns than other parts of the country. Similarly, representatives of the Shi’a community told DFAT that Lahore and Islamabad were the safest parts of the country for Shi’a. Representatives of the Lahore Christian community told DFAT that the security situation has improved and that the government is genuine in its attempts to provide Christians with state protection, although some risks—particularly of communal violence and societal discrimination—remain.

    5.16     Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country. There is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare. Such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders.

  8. At the hearing I pointed out that country information[12] showed Islamabad with its very high level of security has suffered scant militant/sectarian attacks in recent years, and Lahore had suffered few militant/sectarian attacks in recent years. At the hearing when the applicant replied that the Pakistan media fails to report all of the casualties, I discussed a range of authoritative sources. I acknowledge that attacks and occurrences may be under reported in any location including in Islamabad and Lahore, and indeed, the September 2017 DFAT report states that statistics of terrorism ‘largely derive from news reports, and may understate the number of casualties’.[13] However, I do not accept that significant attacks are not reported in Pakistan where there is largely a free press, and additionally I have considered reports that keep detailed regional statistics, deaths and injuries. As well, the September 2017 DFAT report published after the hearing does not raise new issues with regards to areas for relocation in Pakistan. That report states in part:

    Sectarian Violence

    3.46     Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location (…) and for members of specific groups (see Hazaras and Turis, above). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure.

    Sectarian Violence by province: Punjab (including the Islamabad Capital Territory)

    3.51     Shi’a are dispersed throughout Punjab province, including in the provincial capital Lahore. Sectarian tensions and violence tend to be more prevalent in southern Punjab, as well as parts of Gujranwala, Sialkot and Rawalpindi provinces in northern Punjab province. Conservative madrassas and militant groups tend to be more prominent in these areas, particularly in southern Punjab, and the Sunni and Shi’a communities tend to be more segregated. In contrast, several credible sources in Lahore told DFAT that Lahore and Islamabad are the safest places in the country for Shi’a. Shi’a and Sunni communities in these cities tend to be much more integrated. According to the CRSS, no deaths from sectarian violence occurred in Islamabad in 2016. There were fewer fatalities from sectarian violence in Punjab than in the other provinces in 2013, 2014 and 2015.
    3.52     Nonetheless, sectarian and other religious violence does occur across Punjab, including in Lahore. The largest attack in 2016 targeted Christians at a public park on Easter Sunday, killing 74 people. No successful large-scale attacks targeting Shi’a took place in Lahore during 2016. No Shi’a died as a result of sectarian violence in Lahore in 2015. A small number of attacks targeted Shi’a in other parts of Punjab province during 2016. On 25 November 2016, unidentified suspected militants shot and killed a prominent Shi’a leader in Sahiwal District. On 13 October 2016, armed assailants associated with militant group Ahl-e-Sunnat-Wal-Jamaat (ASWJ) opened fire on an Ashura procession in Sialkot, injuring 10 Shi’a mourners. The SATP recorded no confirmed Shi’a deaths from sectarian violence in Punjab over the first five months of 2017.
    3.53     While sectarian violence can occur in any part of Punjab province, including major cities, DFAT assesses that Shi’a in Lahore and Islamabad face a low risk of sectarian violence.

    Pashtuns

    3.6      The security situation for Pashtuns has improved in line with the general improvement in security across Pakistan. Pashtun-majority areas have traditionally experienced disproportionately high levels of tribal, intra-communal and politically motivated violence, and a high concentration of military operations. However, DFAT assesses that Pashtuns do not face a higher risk of violence than other groups based on their ethnicity. Pashtun community leaders in Lahore told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country.

    [12] The monthly summaries of conflicts in Pakistan provided by International Crisis Group CrisisWatch, Pakistan, using filters for country and range of months, [ The summaries of conflicts and events in Pakistan provided by South Asia Terrorism Portal, using filters for country, region, and range of years, [

    [13] At 2.33

  9. The applicant is from the Bangash tribe that includes both Shias and Sunnis, and which differs from the Turi tribe that is almost only Shia. However, reports do not show that Bangash for that reason are targeted for harm in Islamabad or Lahore. As well, there are no reports that Sunnis displaced from Kurram Agency generally seek out and kill Shias from Kurram Agency, in Islamabad or Lahore.

  10. The submission of 9 October 2017 submits the situation for Turis can be viewed as similar to Bangash. But I note and accept the authoritative September 2017 DFAT report assessment based upon a range of sources, that away from Parachinar, Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups. And I note and accept the September 2017 DFAT report assessment that while sectarian violence can occur in any part of Punjab province, including major cities, ‘DFAT assesses that Shia in Lahore and Islamabad face a low risk of sectarian violence’. The report also said that “…several credible sources in Lahore told DFAT that Lahore and Islamabad are the safest places in the country for Shi’a. Shi’a and Sunni communities in these cities tend to be much more integrated”. The submission of 9 October 2017 argued the non-referencing of sources relied upon suggests the legitimacy of the information is questionable. I have considered but reject this argument as the report states it is “based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Pakistan” and “Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.[14]” In sum, I have considered the submission but do not accept that the applicant would be at greater risk of being targeted in Islamabad or Lahore because he is a Shia Bangash from Parachinar or because he may be imputed to be a Shia Turi from Parachinar.

    [14] At 1.4

  11. A submission of 27 June 2017 discussed a 2017 report of a Shia from Kurram Agency being gunned down in Islamabad and submitted this is an example of issues faced by relocating individuals. However, the person killed was identified as an important Majlis Wahdat-e-Muslimeen (MWM) party leader and cleric- which is very different to the applicant’s personal circumstances and low profile. The submission also cited a report of deaths in Wah Cantt, but as the submission said, that is an area outside Islamabad.

  12. In light of the country information, I find that the applicant would be able to travel to and reside in Islamabad or Lahore where there are Shia and Pashtun communities including large numbers of people who have relocated from other parts of Pakistan. I acknowledge country information shows that as a Pashtun in Islamabad or in Lahore (and particularly as a newly-arrived man) he may face some discrimination from police and security forces and in getting identification. However, he is less likely to be caught up in such racial profiling as he is a Shia man from Parachinar and ostensibly not a Taliban supporter or from Khyber Pakhtunkhwa province. Regardless, I do not consider the discrimination and difficulties outlined in the DFAT report rise to the level of persecution.

  13. I acknowledge there continue to be militant/sectarian attacks in Lahore and Islamabad but in the past few years these have been few and largely directed at police, military and high profile targets. I find the applicant will be able to practise his religion in those cities in the way he wishes. I do not accept that in the reasonably foreseeable future there is a real chance he will be targeted in militant/sectarian attacks for reason of any part of his identity as a Shia, Bangash and Pashtun man who comes from Parachinar, either when the parts are considered separately or cumulatively. In light of the country information, I consider remote the chance that he would be the victim of criminal or political violence in Islamabad or Lahore in the reasonably foreseeable future.

  14. As I pointed out at the hearing, while I accept the father and family are affluent and well-known in Parachinar, I do not accept that they are known or have any profile in distant Islamabad or Lahore. The applicant replied that his family are high profile and the father was a member of [Organisation 1] and they spoke out against terrorism, and Sunnis who had fled Parachinar to other parts of Pakistan would recognise him and his family links and would kill him. But based on the material before the Tribunal, I do not accept the father/family has undertaken any actions or activities including in [Organisation 1] of such significance that Sunnis or Sunni militants or anyone else would be motivated to search for and/or seek to harm the applicant in distant Islamabad or Lahore. I do not accept that the applicant is high profile or would be prominent or even identified in Islamabad or Lahore either because of his father/family in Parachinar or for any of the applicant’s own achievements. I consider he will have a high degree of anonymity in Islamabad or Lahore.

  1. While I accept the applicant was harassed by Sunni students at college, had held a position in the Shia ISO, and received two threatening phone calls, these circumstances are now over three years in the past when he was attending college in distant Peshawar. Similarly, I find he was not personally targeted for abduction/ransom because of his religious or political profile, but rather the abduction/ransom was criminally motivated, and the abduction is now three years in the past. At the hearing he stated that ISO members had been targeted by the Taliban in Islamabad and Lahore, but as I pointed out, country information[15] shows there has been occasional violence against active students, but references show this has largely been in Karachi and involving disputes about local matters. The September 2017 DFAT report does not raise new issues with regards to ISO members. As I discuss in my credibility findings above, the applicant’s ISO unit had been small in number and his duties and tasks were local and low level, and I do not accept that his ISO activities gave him any political/religious profile in the wider community beyond the local college area at that time. The applicant has not been an active ISO member for several years since he completed his schooling. I do not accept that his political, social and religious activities during his school years in his home area and in Peshawar and the abduction in Peshawar, now some years in the past, will bring him to the adverse attention of Sunni militants or any other agents in Islamabad or Lahore.

    [15] January 2016 DFAT report, 4.7

  2. As I pointed out at the hearing, the ISO acts as a feeder organisation for mainstream Shia parties. At the hearing the applicant said that he had not stayed in contact with the ISO and he did not become politically involved with any mainstream Shia political party after his schooling ended in Pakistan, and he has undertaken scant political activities in Australia. If he returns to Pakistan I do not consider that in the reasonably foreseeable future he will seek to become any more involved in politics and religion than he has been since his study in Peshawar, and regardless, there are no barriers preventing Shias from participating in democratic processes in Islamabad or Lahore. I find that the applicant is not currently and is not likely in the reasonably foreseeable future to become a prominent or high-profile Shia, either individually or cumulatively as a consequence of his involvement with the Shia religion and politics. I do not accept that the applicant faces harm amounting to persecution in Islamabad or Lahore because of his actual or imputed political opinion or because of his father’s political opinion.

  3. At the hearing I discussed how the January 2016 DFAT reports showed that Shias have religious freedom and do not face significant discrimination in employment, education and healthcare. The September 2017 DFAT report does not raise new issues with regards to such discrimination, and states in part:

    3.38     Societal discrimination in Pakistan tends to manifest in the form of positive discrimination (nepotism, patronage, etc.) in favour of one’s own family, tribal or social group (though some minorities do suffer ongoing discrimination). However, some (typically low-level) anti-Shi’a discrimination does occur.

    3.39     Shi’a are represented in the professional community in Pakistan, including the medical and legal professions. There is no credible evidence of systemic discrimination against Shi’a in gaining admission to the public service, police, military or the private sector. However, there are perceptions of discrimination against Shi’a at higher levels of some organisations. DFAT notes that in remote areas and poorer cities such as Quetta employment opportunities are often limited regardless of ethnic or sectarian identity. Overall, DFAT assesses that Shi’a generally do not face significant levels of discrimination when seeking employment based on their religious affiliation.

    Access to high-quality education is limited for some Pakistanis, regardless of religious affiliation, and depends primarily on an individual’s geographic location and financial resources. However, DFAT assesses that Shi’a can experience low-level discrimination because of religious bias in the public school syllabus and textbooks. [3.40]

    DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation. [3.41]

  4. In light of the country information I find that any anti-Shia discrimination and prejudice the applicant may suffer in the reasonably foreseeable future would not impact on him to the extent that he would suffer serious harm amounting to persecution in relation to his further education or access to health care or employment in Pakistan.

  5. At the hearing I pointed out that he departed Pakistan legally on his valid Pakistan passport and although he had sought refugee status here, country information does not show that the way he departed Pakistan or anything he had done in Australia would cause him to face harm on his return. My comments drew on the January 2016 DFAT report. However, the September 2017 DFAT report does not raise new issues with regards to his profile on returning to Pakistan as a returnee:

    5.19     In practice, returnees tend to leave Pakistan on valid travel documents and therefore tend not to commit Pakistani immigration offences. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. Only those who are returned involuntarily or are travelling on emergency travel documents are likely to attract attention from the authorities upon arrival.

    5.20     DFAT understands that those returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people tend to be released within a few days, either having been bailed by their families or having paid a fine, although there are provisions for jail sentences. Those wanted for a crime in Pakistan or who have committed a serious offence while abroad may be arrested and held on remand, or required to report regularly to police as a form of parole.

    DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. [5.21]

  6. At the hearing I pointed out that country information does not show he will face harm on returning to Pakistan because of his long residence in Australia. My comments drew on the January 2016 DFAT report. However, the September 2017 DFAT report does not raise new issues with regards to his profile on returning to Pakistan as a returnee who had lived in the West:

    3.139   Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship), and western-branded retail chains operate throughout the country. Both Urdu and English are official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives.

    3.140   DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.

  7. The applicant replied that nobody can guarantee safety in his country and Pakistanis who travel overseas are not from Parachinar. However, Pakistan is a diverse country of about 193 million with an active civil society. There are significant Pakistani diasporas globally, including in Saudi Arabia, India, the UAE, the USA and the UK and countries where English is often used. Many Pakistanis travel between these countries and Pakistan for business, social and family reasons. That the applicant from Parachinar and with his characteristics has lived and worked in Australia and can speak English will not cause him any difficulties on his return to Pakistan.

  8. The submission of 9 October 2017 quoted the January 2016 DFAT report concerning the issuance of computerised National Identity cards (CNIC) in Pakistan. The report stated in part “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 do not need to submit supporting education certificates. Applications from residents in FATA, parts of Khyber Pakhtunkhwa and Balochistan must be counter-signed 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.[16]” The submission argued this information suggests that the applicant would be required in the future to return to his home area to renew his CNIC. The applicant produced a copy of his CNIC with his application that shows it was issued on 8 July 2014 and valid to 8 July 2021. However, DFAT’s understanding in the report concerned the requirements for registration and not for renewal of an already issued card. The applicant will have a valid CNIC on returning to Pakistan, and will reasonably be able to make safe arrangements to have the CNIC renewed in 2021.

    [16] At 5.31

  9. In sum, I find that in Islamabad or Lahore the applicant’s characteristics and profile- as a single Muslim Shia and a Pashtun of the Bangash tribe from the Kurram Agency who in the past had held a position in the Shia ISO, with his actual/implied political opinion, and whose father is a well-known and respected Shia elder in Parachinar,  and who has returned from a western country- when considered individually and cumulatively, will not result in a real chance that he will suffer serious harm amounting to persecution now and in the reasonably foreseeable future. I find that none of the applicant’s claims that I do accept, when considered individually or cumulatively, show that in Islamabad or Lahore there is a real chance he will suffer serious harm amounting to persecution now and in the reasonably foreseeable future. I do not accept that the applicant will have to modify his religious practices upon his return or that in Islamabad or Lahore his involvement in a Shia organisation will result in a real chance that he will be harmed. Taking into account the Shia and Pashtun communities throughout Pakistan including in Islamabad and Lahore, the low number of sectarian/militant attacks against Shias in Islamabad and Lahore, and the country information that shows in many areas Shias and Sunnis generally live together without any significant issues, I find remote the chance that the applicant would suffer serious harm for reasons of his religion as a result of generalised sectarian violence or a specific attack.

  10. I find there is not a real chance that if returned to Pakistan, and residing in Islamabad or Lahore, the applicant would be persecuted now and in the reasonably foreseeable future for one or more of the reasons he has claimed of:

    ·Religion: He fears the Taliban, Sunni political and extremist groups or their agents will harm him because he is a Muslim Shia.

    ·Political opinion: He fears the Taliban, Sunni political and extremist groups or their agents will harm him because of his political opinion (actual or imputed) as an opponent of those groups.

    ·Political opinion: He fears the Taliban, Sunni political and extremist groups or their agents will harm him because of his past membership in the Imamia Student Organisation.

    ·Membership of a particular social group, of: the Bangash tribe; a well-known Shia leadership family in Parachinar; persons/asylum seekers who had lived outside Pakistan for a lengthy period and are considered Westernised.

  11. When I consider all of the applicant’s personal circumstances and all of my findings about his narrative and evidence both individually and cumulatively, I find there is not a real chance that if returned to Pakistan, the applicant would be persecuted now and in the reasonably foreseeable future for one or more of the reasons in s.5J(1)(a) in Islamabad or Lahore, and so the real chance of persecution does not relate to all areas of Pakistan. I find the applicant does not have a well-founded fear of persecution if returned to Pakistan.

    Refugee criterion

  12. In light of the above assessment, the Tribunal finds that if returned to Pakistan, and residing in Islamabad or Lahore, the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims.

  13. The Tribunal finds the applicant does not have a well-founded fear of persecution in Pakistan as there is not a real chance that if returned to Pakistan, the applicant would be persecuted now and in the reasonably foreseeable future for one or more of the reasons in s.5J(1)(a) of the Act either when looked at individually or cumulatively in Islamabad or Lahore, and so the real chance of persecution does not relate to all areas of Pakistan.

  14. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

  15. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. My considerations included whether it would be reasonable for him to relocate to an area of the country where there would not be a real risk that he will suffer significant harm.

  16. In light of my foregoing consideration of the claims, evidence and country information and the foregoing findings I have made, I am satisfied that in the areas of Islamabad or Lahore, there would not be a real risk that he will suffer significant harm now.

  17. I find there are not substantial grounds for believing there is a real risk that the applicant will suffer significant harm in Islamabad or Lahore because of the applicant’s characteristics and profile- as a single Muslim Shia and a Pashtun of the Bangash tribe from the Kurram Agency who in the past had held a position in the Shia ISO, with his actual/implied political opinion, and whose father is a well-known and respected Shia elder in Parachinar, and who has returned from a western country- when considered individually and cumulatively, now and in the reasonably foreseeable future. I find that none of the applicant’s claims that I do accept, when considered individually or cumulatively, show that in Islamabad or Lahore there are substantial grounds for believing there is a real risk that the applicant will suffer significant harm now and in the reasonably foreseeable future.

  18. I do not accept that the applicant will have to modify his religious practices upon his return or that in Islamabad or Lahore his involvement in a Shia organisation will result in a real risk that he will suffer significant harm. Taking into account the Shia and Pashtun communities throughout Pakistan including in Islamabad and Lahore, the low number of sectarian/militant attacks against Shias in Islamabad and Lahore, and the country information that shows in many areas Shias and Sunnis generally live together without any significant issues, I find there is not a real risk that he will suffer significant harm for reasons of his religion as a result of generalised sectarian violence or a specific attack.

  19. As well, I am satisfied it would be reasonable for the applicant to relocate to either of those areas as I now discuss. I consider the applicant has the capacity to relocate within Pakistan to Islamabad or Lahore as they are large and important cities in Pakistan and they are practically, safely and legally accessible. My considerations have also encompassed the applicant’s particular circumstances. The applicant is a young man who is in good health. Whilst he suffered the traumatic experience of being kidnapped for ransom in February 2014, he showed resilience in returning to Peshawar a few months later to complete his schooling and then travel to Australia where he has lived independently. I consider his mental health is stable enough for him to relocate to Islamabad or Lahore. 

  20. He is not married and has no dependants to care for. He has demonstrated his ability to live independently by travelling to and residing on his own in Australia. Soon after arriving in Australia he ceased his studies but he subsequently found [work]. At the hearing he said he had greatly improved his English skills after arriving and had been promoted [in] the two years he has been [employed]. He has gained work experience and skills [in] his [City 1] employment that he can well utilise in Pakistan. In his home country he will be familiar with the society, culture and languages as his application shows he speaks Pashto, Urdu and English. In particular, his fluent English will be a strong advantage when he seeks a job in Pakistan. He has Pakistani school certificates having completed his schooling in a [college], and should reasonably be able to do further study (full or part-time) in Pakistan if he chooses.

  21. Whilst Shias and Pashtuns are minority communities in Islamabad and Lahore, as I discussed at the hearing there are communities of Shias and Pashtuns in those cities including many who have migrated in recent years. At the hearing he said there are Shia communities in [City 1] and he joins in their organised activities, and I consider he will reasonably be able to do the same in Islamabad or Lahore. He will be able to access a range of suitable accommodation choices in those cities, and indeed in Australia- a country he was not familiar with- he demonstrated an ability to independently arrange accommodation over several years. In the application he stated “I relocated to Rawalpindi but I faced problems finding accommodation because I am Shia”. But at the hearing he explained that in May and June 2014 he had returned to Peshawar to complete his exams and practicals. During May 2014 he also had a trip to Islamabad in order to sit [a] test, and stayed [in] Rawalpindi. His evidence shows he had not gone to Rawalpindi to relocate but rather to get short term accommodation just while he sat [a] test. In light of the country information about communities of Shias and Pashtuns in Islamabad and Lahore I reject his claim that he will be unable to get any accommodation in those cities because of his social, ethnic and religious profile. His father/family is affluent and although his father closed an uncompetitive [business], the applicant said his father continues to operate a [business] and also receives a government pension. Some financial support is ostensibly available to the applicant when he returns to Pakistan and while he seeks a job and accommodation. In sum, I find that the applicant has the capacity to relocate within Pakistan to Islamabad or Lahore, and for him, relocation is reasonable. 

  22. In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if he is removed/returns to Pakistan and I am satisfied it would be reasonable for him to relocate to an area of the country such as Islamabad or Lahore where there would not be a real risk that he will suffer significant harm.

    Conclusion

  1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

  2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

  3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    C. Packer
    Member


    ATTACHMENT A – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she 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

    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 because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.  

    Complementary protection

    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’).

    ‘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.

    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.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.



shiiteNews article that shows locations of deaths in 2016: 58 Shia Muslims Martyred in 2016 in Pakistan as detailed report of Shia genocide released, 31 December 2016, [

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