1515694 (Refugee) - [2019] AATA 6778

1515694 (Refugee) [2019] AATA 6778 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1515694
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Dr Colin Huntly
DATE:26 September 2019
PLACE OF DECISION:  Perth
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 26 September 2019 at 11:03am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia minority – ethnicity – Pashtun tribe – educated professional – attacks and threats by extremist groups – adverse information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225

Applicant S v MIMA (2004) 217 CLR 387

Chan v MIEA (1989) 169 CLR 225
Haji Ibrahim v MIMA (1999) 94 FCR 259
MIMA v Zamora (1998) 85 FCR 458
Morato v MILGEA (1992) 39 FCR 401
Ram v MIEA (1995) 57 FCR 565
SZFDV v MIAC (2007) 233 CLR 51
SZSRQ v Minister for Immigration [2014] FCCA 2205

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 28 July 2014 and the delegate refused to grant the visa on 5 November 2015.
This matter was initially constituted to Member Goodier. The applicant appeared before the Tribunal (as previously constituted) on 10 February 2017.
On the non-reappointment of Member Goodier to the Tribunal, the review application was ultimately reconstituted to Member Huntly, who held an initial hearing on re-constitution on 3 April 2018. This hearing was adjourned pending applicant submissions. The resumed hearing was ultimately held on 26 August 2019. The applicant attended all hearings with the assistance of his successive nominated migration agents, to give evidence and present arguments. The Tribunal was assisted in the conduct of the hearings by an interpreter in the Pashto and English languages.

Country of reference

According to the delegate’s decision record, the applicant’s movement record and the applicant’s Departmental file, the applicant arrived in Australia [in] February 2014 as the holder of a [temporary] visa. On 25 July 2014, the applicant applied for a Protection visa. The Tribunal has had regard to the Departmental files upon which its finding as to the applicant’s identity was made, in particular, the “Biometric Identification Test: Legislative script-Adult” declaration of an authorised officer dated 28 August 2014.
On the basis of the above evidence, the Tribunal finds that the applicant is a man from [Village 1], Upper Kurram Subdivision, Kurram District, Khyber Pakhtunkhwa, Pakistan, born on [date], and is a citizen of the Islamic Republic of Pakistan (Pakistan).
The Tribunal therefore finds the receiving country is Pakistan for the purposes of s.36(2)(aa) of the Act.
Having regard to all the evidence, the Tribunal finds the applicant does not have a right to enter and reside in a third country. The applicant is therefore not excluded from Australian protection by the operation of s.36(3) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the review applicant is owed protection in Australia owing to him holding a well-founded fear of serious harm in Pakistan for the essential and significant reason of being a member of the particular social group: Shia Muslim Turi professionals originating in the Upper Kurram Subdivision, Kurram District, Khyber Pakhtunkhwa, Pakistan and targets of Sunni extremist violence now or for the foreseeable future in the Khyber Pakhtunkhwa, or elsewhere throughout Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.

Applicant claims

The applicant’s written claims in his original application for protection are summarised in the delegate’s decision record in a series of bullet points as follows:[1]
[1] Direct quote.
·He was born in [Village 1], Upper Kurram Agency (of the then Federally Administered Tribal Area in Pakistan), and that he is a member of the Turi tribe.
·He is a Shia Muslim.
·His family was close to [Mr A], who along with his so[n] [Mr B], was assassinated by Sunni extremists on 26 September 1998.
·In 2002, his father began to receive death threats.
·From 2005 to 2009 he studied at [University] for a [Qualification] in [Subject, specialisation]. There he faced discrimination for being a Shia, such as having to pray in a separate room and not with the SUNY students, being disliked and exclude for being sheer and being accused of being an infidel.
·Whilst at university, he was a member of the Imamia Students Organisation Pakistan (ISO PAK). In 2008 he was the [office bearer] of his unit within the college (not for Peshawar overall).
·In August 2010 he started working at [Workplace] as [Job title]. He was the only Shia employee. He resigned on 3 February 2014
·[In] April 2007, while he was on a study break at his father’s home Parachinar, sectarian conflict broke out after an attack on the main Shia mosque. A minivan containing [number] [Country 1] Sunnis, who were patients at the main agency hospital, arrived at the house seeking refuge. They feared that amidst the violence the shares were going to go to the hospital (which is an open area) and kill them.
·The hospital is located [time] by foot from the house.
·The following persons were present in the house at the time: his mother, his father, [siblings, cousins and another relative].
·Among the Sunnis, there were [number] men, and the remaining [number] were women and children.
·They hit the people in various rooms and storerooms and lock the doors.
·About half an hour later the house was surrounded by thousands of she is. About 20 entered the house and found the five men, who they drank to the front yard and shot.
·Individuals from the Anjuman-e-Hussainia (the central representative body of the residence of Kurram Agency) came and took the bodies away. Later, they also took the women and children back over the border to Afghanistan, and they organised a body transfer to the deceased’s relatives.
·Threats were made by the families of the Sunnis who were killed and by local she is who accused them of being traitors.
·The applicant, his parents and his brothers all left and went to their house and [Village 1]. Their relative state behind.
·A few weeks later missile fire from Afghanistan struck and damaged their house in [Village 1].
The applicant’s claims for protection continue in a Statutory Declaration made out by the applicant and dated 23 July 2014 at page 3 as follows:
16.In June 2007, I decided to go back to Peshawar as the study break was now over. During the exam time, the roads were blocked and in order to sit exams, I had to travel with army convoys to get to my university. My parents were against my decision to do that, because the situation was still critical and bombs were still fired targeting Shias. Threats were continuing to be made against us, streets were still unsafe and people continue to die in Parachinar. [In] June 2009, one of my cousins died at the hands of the Taliban on his way to a’s friend’s house in [Village 2].
17.I completed my [Qualification] in 2009 and in August 2010 I got a job at [Workplace] as a [Job title]. The college is funded by the Pakistani government, but also assisted by [Country 2] and [Country 3]. The [Workplace] was often under a lot of scrutiny and threat due to its affiliation with [Country 2] and [Country 3] as well as the fact that industries such as design were often considered “un-Islamic”. In addition to that, I was the only Shia employee at the [Workplace], everybody else was Sunni.
18.In 2011 I had received threatening messages on Facebook [Social media] by a person named [C] telling me that I am target of the extremists terrorists and that he has passed my contact details to them and that it was only a matter of time until they came looking for me.
19.Immediately after this incident I contact the police. They did not take my concern seriously and even ridiculed me saying that such threats were fake and that I should not worry about it. They refused to look into it and sent me home.
20.In February 2013, I received several phone calls from an unknown number telling me that I was a Shi’a Kafir (infidel), that I was supporting the West and was promoting “un-Islamic teachings”. The person on the phone also said that because I belong to the Turi tribe, which is anti-Taliban and anti-Al Qaeda, they have no other choice but to kill me. He said that I should leave my job and Pakistan.
21.By that time I became extremely scared and no longer felt safe in Pakistan. I told my parents about the anonymous phone calls and they urged me to contact the police, which I did. The police began an investigation, however, they were unable to find out who the calls were from. Investigations like these often go cold, because they are common and the police does not have the capacity to spend much time and resources on such matters.
22.My fear grew so big that I was forced to change my location every month or so. From approximately March 2013 until I left Pakistan for Australian February 2014, I lived in approximately nine different places, the majority which were hostels.

Non-disclosure certificate

Of particular relevance to matters arising under Part 7 of the Act, s.438 provides that, where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal may have regard to that document or information and may disclose any matter in the document or information to the applicant if it considers it appropriate to do so. The Tribunal notes that the operation of s.438 is dependent upon the existence of a valid certificate by the Minister or his delegate.
In this case, the Departmental file before the Tribunal included documents subject to a non-disclosure certificate pursuant to s.438(1)(a) of the Act dated 16 May 2016. This certificate related to an anonymous allegation that the applicant engaged in serious criminal conduct while in Pakistan. The certificate in question fails to articulate a clear rationale as to why disclosure of the relevant information would be contrary to the public interest, although public interest considerations may, on one construction, be said to be inferred from the following extract:
Information provided as attachment to email was provided as an allegation and the source has an expectation of anonymity. The identity of the source of the allegation should not be disclosed or by extension, any information contained within the allegation that would have the potential to identify the source.
In determining how to proceed on this matter the Tribunal has had careful regard to its obligations under the Act at s.424AA:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
The Tribunal notes that the inter-relationship between the equivalent non-disclosure certificate provisions under Part 5 of the Act have been judicially considered by the Federal Court. In MIBP v Singh, the court found that, where the obligations in ss.359A (adverse information) and 375A (non-disclosure certificate) come into conflict, s.375A is the leading provision but that the aims of both ss.375A and 359A can usually be served without conflict.[2] In Burton v MIMIA,[3] the Federal Court held that a valid s.375A certificate does not override the obligation to provide particulars of information under s.359A(1). His Honour stated that the provision of particulars under s.359A need not reveal the information subject to the s.375A certificate, and need not involve access to any actual document.[4] Therefore, while the material subject to a s.375A certificate cannot be provided to the applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with its s.359A obligation. In the present case, the Tribunal determined to follow the foregoing judicial authority with respect to the s.438 non-disclosure certificate appearing on the applicant’s Departmental file.
[2]See MIBP v Singh [2016] FCAFC 183 (Kenny, Perram and Mortimer JJ, 19 December 2016) at [56]. It was also held that Davis v MIMIA [2004] FCA 686 was not correct to the extent it suggested that if there is a s.375A certificate, it has the effect that s.359A never gives rise to an obligation to provide particulars, or that there is no obligation to disclose the existence of the certificate to an applicant. An application for special leave to the High Court was dismissed: MIBP v Singh [2017] HCATrans 107 (Keane and Gordon JJ, 12 May 2017).
[3]Burton v MIMIA (2005) 149 FCR 20 (Wilcox J, 11 November 2005) at [40]-[42]. His Honour noted that if Parliament had intended to make the obligation in s.359A(1) subject to s.375A one would have expected it to have done so but that it had not.
[4]In Burton v MIMIA (2005) 149 FCR 20 (Wilcox J, 11 November 2005) the Court held that the earlier judgment in Davis v MIMIA [2004] FCA 686 on this issue was wrongly decided and declined to follow it.

Accordingly, the Tribunal, as originally constituted, put the substance of the allegations of serious criminal conduct in Pakistan by the applicant made by the anonymous informant to the applicant at the first hearing and invited written submissions on both the certificate, and the substance of those allegations. Written submissions dated 22 February 2017 did not seek to challenge the validity of the s.438 certificate, but did seek further particulars of the substance of the allegations. The previously constituted presiding Member responded on 2 March 2017 advising that no further particulars would be disclosed.
On 13 March 2017, detailed written submissions were received, including specific submissions in response to the Tribunal’s invitation relating to the s.438 material. These written submissions relevantly state as follows:
Adverse information put to the Applicant by way of the s 438 Certificate
10.The applicant wholeheartedly denies the allegations put to him at hearing. There is nothing in his previous submissions or evidence that would suggest that he was capable of the act he allegedly perpetrated.
11.In support of his good character, the applicant has obtained the following documents:
a. Australian Federal Police clearance, dated [August] 2016 (enclosed);
b. Pakistan Police Clearance, dated [August] 2016 (enclosed):;
c. Pakistan Police Certificate, dated [February] 2017 (enclosed); and,
d. Statement from the political administration of Kurram Agency supporting the applicant’s version of events (enclosed).
The Tribunal notes that there is nothing on the Departmental file to suggest that the applicant is of particular concern to authorities in this country on account of his conduct prior to arriving in Australia. The Tribunal has also considered the good conduct evidence provided by the applicant’s agent in response to those anonymous allegations made against him to the Department which were the subject of the s.438 certificate. On the basis of the foregoing, the Tribunal finds that it should place no weight on the allegations made against the applicant that are referred to in the anonymous notification which is the subject of this s.438 certificate for the purposes of this review.

Applicant submissions relating to fears of persecution for the essential and significant reason of generalised violence in the region

The Tribunal notes that the applicant’s representative has made a number of submissions in support of the applicant’s claims for protection that fall under the general heading submissions relating to fears of persecution for the essential and significant reason of generalised violence in the region perpetrated by agents of harm including, but not limited to: the Taliban in Pakistan, both Sunni and Shia extremists, various non-ideological criminal thugs and other non-state actors. In particular the Tribunal refers to submissions made on behalf of the applicant dated: 13 March 2017 at [16] to [22]; and 28 March 2018 at [95] to [103] (albeit with an attempt to focus on sectarian targeted attacks on Shia Muslims).
This broadly coincides with country information to which the Tribunal has had regard as follows:[5]
2.66.The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
2.67.Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
2.68.Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
2.69.The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).
[5]DFAT Country Information Report Pakistan (20 February 2019) at 18.
The Tribunal further notes the following extract of country information:[6]
[6]DFAT Country Information Report Pakistan (20 February 2019) at 19.
Security Operations
2.75.The Pakistan armed forces have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups.
2.76.In December 2014, the APS attack led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. The NAP ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2.
2.77.Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel.
2.78.In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province.
2.79.Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.
2.80.In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).
Two things emerge from an assessment of this and other comprehensive country information about the general security situation in Pakistan (including that submitted by the applicant’s representatives), namely that there is a generalised experience of religious, sectional and other forms of violence that is difficult for members of the Australian community to comprehend. The agents of harm perpetrating this generalised criminal violence include, but are not limited to: the Taliban in Pakistan, both Sunni and Shia extremists, various non-ideological criminal thugs and other non-state actors. Second, security operations conducted by agencies of the Pakistan state have had measurable success in addressing this environment of generalised criminal violence.
Regardless, the Tribunal notes that under the Convention provisions, while there can be no legal presumption of state protection,[7] there is some authority for the proposition that an asylum seeker in Australia will bear a practical burden of establishing that protection is lacking.[8] The Tribunal further notes that the Supreme Court of Canada stated in Canada (Attorney-General) v Ward (Ward) that in the absence of a state admission as to its inability to protect its nationals, clear and convincing evidence of a state’s inability to protect must be provided.[9] The Court continued:
Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus … it should be assumed that the State is capable of protecting a claimant.[10]
[7]A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999). This issue had been the subject of continuing debate, but now appears settled after A. For prior discussion see e.g. Koe v MIMA (1997) 74 FCR 508, Thiyagarajah v MIMA (1997) 80 FCR 543 at 567, MIMA v Prathapan (1998) 86 FCR 95, MIMA v A (1998) 156 ALR 489 (Nicholson J, 9 April 1998) and MIMA v Kobayashi (unreported, Federal Court of Australia, Foster J, 29 May 1998).
[8]See for example SZBJH v MIAC [2007] FMCA 1395 (Scarlett FM, 3 August 2007) at [43] and SZIRA v MIAC [2007] FMCA 1082 (Nicholls FM, 7 June 2007) at [32].
[9][1993] 103 DLR (4th) 1 at 23.
[10]Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1 at 23.
In MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[11]
[11](2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.
Accordingly, the Tribunal has proceeded on the basis that the Pakistan state “is capable within its jurisdiction of protecting [the] applicant[s]”. The Tribunal also notes that, the relevant assessment of state protection in relation to complementary protection assessment for the purposes of s.36(2B)(b) is differently framed and the assessment of the available standard of protection in a receiving country is on the basis of “international standards”.[12]
[12]MIAC v MZYYL (2012) 207 FCR 211 at [36]-[37].
Nevertheless, the dispositive consideration relating to this aspect of the applicant’s claims is not the adequacy of state protection with respect to generalised violence within Pakistan. What appears to be dispositive in this instance is the reference to ‘systematic… conduct’, which reflects judicially developed law as to the meaning of persecution. For example, in Chan v MIEA, McHugh J, in the context of the previous legislative framework, stated:
The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.[13] (emphasis added)
[13]Chan v MIEA (1989) 169 CLR 225, per McHugh J at 429-430. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.
The Tribunal notes the body of case law that has subsequently developed around his Honour’s use of the expression ‘systematic conduct’ in that case.[14]
[14]See for example Mohamed v MIMA (1998) 83 FCR 234, Abdalla v MIMA [1998] FCA 1017 (Burchett, Tamberlin and Emmett JJ, 20 August 1998), Chopra v MIMA [1999] FCA 480 (Lee, Whitlam and Weinberg JJ, 23 April 1999), Haji Ibrahim v MIMA (1999) 94 FCR 259 at [25], MIMA v Hamad (1999) 87 FCR 294. In MIMA v Hamad, the Full Federal Court stated at [17]: ‘The phrase “systematic conduct” can be, and often is, used in two senses – either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established.’ The Court stated that McHugh J had used the phrase in the first sense in Chan. In Haji Ibrahim, the Full Federal Court similarly observed at [25] that the word ‘systematic’ may be used in two alternative senses: ‘One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal’. This analysis was not disturbed on appeal to the High Court: MIMA v Haji Ibrahim (2000) 204 CLR 1.
In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan was not intended to mean that there can be no persecution for the purposes of the Convention unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random.[15] His Honour held that:
It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic”.[16]
[15]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
[16]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [99].
The question of whether certain conduct is ‘systematic’ is distinct from the qualitative assessment which is required to determine whether conduct amounts to ‘serious harm’. In VSAI v MIMIA, Crennan J stated that where conduct shown to be serious harm falls to be assessed as to whether it is ‘systematic conduct’ (in that case by reference to the former legislative framework), it would be wrong to require the applicant to show anything more than that it is deliberate or pre-meditated, that is, motivated. It would not be necessary to show that the conduct is widespread or frequently recurring. However, her Honour observed that frequency or regularity may be relevant to determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low level harm.[17] Similarly, also with reference to the previous legislative framework, the Full Federal Court observed in SZTEQ v MIBP that ‘systematic’ is used in the same way that ‘discriminatory’ is used – to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.[18]
[17]VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53].
[18]SZTEQ v MIBP [2015] FCAFC 39 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) at [72]. See also SZTIB v MIBP [2015] FCAFC 40 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) and BZAFM v MIBP [2015] FCAFC 41 (Robertson, Griffiths and Mortimer JJ, 24 March 2015). Note that these comments are obiter.
The statutory test does not displace the general proposition that a single act may suffice, as long as it is part of a course of systematic (in the sense of non-random) conduct. While HajiIbrahim relates to an earlier legislative formulation, it remains law insofar as the meaning of ‘systematic’ is concerned.[19] The term ‘systematic’ should, therefore, be taken to mean ‘non-random’ in the sense of being deliberate, pre-meditated or intended. It is not necessary that conduct be regular, organised or methodical.
[19]VQAD v MIMIA [2003] FMCA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].
Given that generalised violence evident in Pakistan as described in the country information summary extracted above is by definition random and perpetrated by unrelated criminal organisations, it lacks the requisite systematic quality that gives rise to protection obligations under the Act.

The Tribunal also notes, with reference to the complementary protection assessment at s.36(2(aa) of the Act, the qualification at s.36(2B)(c) that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’. Although differently framed, this qualification bears some similarity to considerations relating to assessing whether the harm feared in a country is systematic and discriminatory.
The Tribunal notes the Federal Court’s view that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[20] In SZSPT v MIBP the Court held that, while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s.36(2B)(c) applied because it was no different from the risk faced by the population generally.[21]
[20]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[13]. An application for special leave to appeal this aspect of the judgment was dismissed by the High Court: SZSPT v MIBP [2015] HCASL 114 (Kiefel J, 18 June 2015). See also comments of the court to similar effect in: the judgment at first instance in SZSPT v MIBP [2014] FCCA 1388 (Judge Raphael, 1 July 2014) at [15] (the provision would apply in a situation of ‘universal danger’, but not where the situation was ‘worse for a person of [a particular] ethnicity’); SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49] (risk must be ‘faced by the individual personally in light of the individual’s specific circumstances’); SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [24] (risk must be ‘particular to’ the individual); SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013) at [43] (risk must be faced ‘in light of [the applicant’s] specific circumstances’).
[21]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]-[14].
The Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[22] This approach was also taken in MZAAJ v MIBP to the risk of harm from inadequate medical treatment.[23] Similarly, in SZTES v MIBP, the Court held that a risk faced ‘personally’ is one that is particular to the individual and is not attributable to his or her membership of the population of the country, or shared by that population group in general.[24] In BBK15 v MIBP the Court held that the ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s.36(2B)(c) to apply.[25] These cases make it apparent that where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population, s.36(2B)(c) applies.
[22]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[15]. Contrast SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013), where the Court endorsed a submission by the Minister to the effect that where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, this may disclose a sufficiently real and personal risk: at [34], [49]; however, these obiter comments should not be followed as they are inconsistent with other authorities including the appellate level judgment in SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). Nonetheless, in CLJ15 v MIBP [2018] FCA 1638 (Kenny J, 31 October 2018) the Court held that the Tribunal did not commit a jurisdictional error by incorrectly adopting the more generous approach endorsed in SZSFF as opposed to that in SZSPT: at [50]-[51].
[23]MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.
[24]SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [23]-[24], citing SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013). In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719 (Wigney J, 17 July 2015).
[25]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].
Accordingly, to the extent that the applicant’s claims can be characterised as being based on a well-founded fear of persecution in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to the Taliban in Pakistan, both Sunni and Shia extremists, various non-ideological criminal thugs and other non-state actors, does not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act.

Applicant submissions relating to fears of persecution for the essential and significant reason of membership of a particular social group

The Tribunal notes that, after reviewing statements made in Applicant A’s case, Gleeson CJ, Gummow and Kirby JJ in the joint judgment in Applicant S v MIMA summarised the determination of whether a group falls within the Article 1A(2) definition of ‘particular social group’ in this way:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.[26]
[26]Applicant S v MIMA (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ. In STXB v MIMIA (2004) 139 FCR 1, Selway J at [25] - [27] in considering this test stated that there is one clear difference and another possible difference to the test identified by the Full Court of the Federal Court in MIMA v Zamora (1998) 85 FCR 458. The clear difference relates to the third proposition in both tests and pertains to the High Court rejecting that aspect of the third proposition stated by the Full Court, that society must recognise that the group is ‘set apart’. The possible difference between the tests pertains to the use by the High Court of the word ‘distinguish’ whilst the Full Court used the words ‘set apart’. However after considering a hypothetical example of ‘left handed persons’ in Australia, his Honour concluded that the High Court used the word ‘distinguish’ in the same sense in which the Full Court used the word ‘set apart’. In MZZBO v MIBP [2013] FCCA 1832 (Judge O’Dwyer, 8 November 2013) at [9], the Court held that Applicant S did not suggest a process to be followed where each of the three criteria spelt out in Applicant S must be addressed. If one of the criteria is not met, then a finding of membership of a particular social group cannot be made.
Justice McHugh in Applicant S summarised the issue in broadly similar terms:
To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.[27]
[27]Applicant S v MIMA (2004) 217 CLR 387 at [69] per McHugh J.
Applicant S also establishes that there is no requirement of a recognition or perception within the relevant society that a collection of individuals is a group that is set apart from the rest of the community.[28]
[28]That is, the third Zamora criterion. In MIMA v Zamora (1998) 85 FCR 458 the Full Federal Court stated at 464 that ‘Applicant A’s case was authority for the proposition that “[t]o determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.’ However, the High Court held that the third of these propositions was incorrect. A number of Court decisions have required the third Zamora criterion to be satisfied. Eg: MIMA v Applicant Z (2001) 116 FCR 36 at 40 (able bodied Afghan men); MIMA v Applicant M [2002] FCAFC 253 (Whitlam, North and Stone JJ, 23 August 2003) at [21] (conscientious objectors in Afghanistan); MIMIA v VFAY [2003] FCAFC 191 (French, Sackville and Hely JJ, 22 August 2003) at [100] (unaccompanied children in Afghanistan); SGGB and SGHB v MIMIA [2002] FMCA 367 (Barnes FM, 1 May 2003) at [30] (feminist women in Afghanistan); VBAL v MIMIA [2003] FMCA 120 (Hartnett FM, 7 April 2003) at [30] to [31] (informants against the LTTE); and VAM v MIMIA [2002] FCAFC 125 (Black CJ, Drummond and Kenny JJ, 10 May 2002) at [12] - [14] (ex-policemen targeted for giving information about a gangster in Malaysia). In light of the High Court’s reasoning in Applicant S v MIMA (2004) 217 CLR 387, therefore, the reliance on the third Zamora principle is no longer good law.
Although legal, social, cultural and religious factors or norms are the kinds of factors that may need to be examined in determining whether there is a ‘particular social group’ in a society, the relevant factors will depend upon all the circumstances of the particular case. What is important is that the group must be distinguished from the rest of society and that this may be ascertained by reference to societal perceptions or to third party perspectives.
The Tribunal also notes that the High Court has rejected a number of limiting principles, including principles which have been developed in other jurisdictions. Notably:
a)    There is no requirement of a recognition or perception within the relevant society that a collection of individuals is a particular social group that is set apart from the rest of the community.[29]
b)    A group may qualify as a particular social group, even though the distinguishing features of the group do not have a public face. It is sufficient that the public is aware of the characteristics or attributes that, for the purposes of the Convention, unite and identify the group. For example, Christians in Roman times were a particular social as well as a religious group, although they were forced to practise their religion in the catacombs.[30]
c)    It is not necessary that the group should possess the attributes that they are perceived to have. For example, witches were a particular social group in the society of their day, notwithstanding that the attributes that identified them as a group were often based on the fantasies of others and a general community belief in witchcraft.[31]
d)    Self-identity as a member of a particular group is not a universal prerequisite. For example, many German citizens of Jewish ethnicity did not, in the 1930s, identify themselves as ‘Jews’. They conceived of themselves as Germans. Yet this did not prevent them from being members ‘of a particular social group’ and persecuted for that reason (as well as for reasons of race and religion).[32]
e)    Those who constitute the ‘group’ need not be known as members of the group, even to each other.[33]
f)     There is no reason to confine a particular social group to small groups or large ones.[34]
g)    The uniting particular need not be voluntary.[35] Nor is it necessary for the individual applicant to have been a member of a concerted body or association affirming group identity.[36]
h)    A ‘particular social group’ need not necessarily exhibit an inherent characteristic such as an ethnic or national identity or an ideological characteristic such as adherence to a particular religion or the holding of a particular political opinion.[37] There is no requirement that a characteristic must be ‘innate or unchangeable’ before it can distinguish a social group.[38]
i)   Although cohesiveness may assist to define a particular social group it is not an essential attribute.^[39]
[29]Applicant S v MIMA (2004) 217 CLR 387, overruling this aspect of MIMA v Zamora (1998) 85 FCR 458 at 464.
[30]Applicant A v MIEA (1997) 190 CLR 225 at 265 per McHugh J.
[31]Applicant A v MIEA (1997) 190 CLR 225 at 265 per McHugh J.
[32]Applicant A v MIEA (1997) 190 CLR 225 at 296 per Kirby J. Further, in theory at least, a particular social group could include persecutors of members of that group: see MZYFM v MIAC [2009] FMCA 1276 (Riley FM, 21 December 2009), where the Court opined at [19]: ‘A person may persecute others who belong to his own group. An example is closet homosexuals who have been alleged to be the worst perpetrators of violence against gay men. There is also the well-known concept of an Uncle Tom, who is considered to be a traitor to his own race.’
[33]Applicant A v MIEA (1997) 190 CLR 225 at 301 per Kirby J.
[34]Applicant A v MIEA (1997) 190 CLR 225 at 241 per Dawson J; contra at 266 per McHugh J. McHugh J’s suggestion that a particular social group must be large is not supported by the other judges and should not be relied on. This was confirmed in MIMA v Khawar (2002) 210 CLR 1, at [33] per Gleeson CJ, at [82] per McHugh and Gummow JJ, and at [127] per Kirby J. Although, in MIMA v Khawar, Gleeson CJ stated that in some circumstances the large size of the group might make implausible a suggestion that the group is a target of persecution and might suggest that a narrower definition of the group is necessary (see [30]). See also McHugh J in Applicant A v MIEA (1997) 190 CLR 225 at 257.
[35]Applicant A v MIEA (1997) 190 CLR 225 at 241, per Dawson J. See also Callinan J in MIMA v Khawar (2002) 210 CLR 1 at [153].
[36]Applicant A v MIEA (1997) 190 CLR 225 at 236, per Brennan CJ, and at 301 per Kirby J.
[37]Applicant A v MIEA (1997) 190 CLR 225 at 234 per Brennan CJ.
[38]Ibid, at 236.
[39]MIMA v Khawar (2002) 210 CLR 1 at [33].
The Tribunal also notes that Australian courts have emphasised that the primary focus of this Convention ground is on what a person is - a member of a particular social group - rather than what a person has done, or may do, or possesses. However, the courts have also emphasised that this distinction should not be taken too far.
In Morato v MILGEA, Black CJ stated:
It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is ‑ a member of a particular social group ‑ rather than upon what a person has done or does.[40]
It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group.[41]
[40]Morato v MILGEA (1992) 39 FCR 401 at 404.
[41]Ibid at 405.
His Honour acknowledged, however, that the part played by acts done, or assumed to have been done, by those who are said to constitute a particular social group can give rise to difficult questions and that the activities of the members of an asserted group are not necessarily irrelevant:
It may be, for example, that over a period of time and in particular circumstances, individuals who engage in similar actions can become a cognisable social group. The actions may, for example, bear upon an individual's identity to such an extent that they define the place in society of that individual and other individuals who engage in similar actions. There may be such an interaction in a particular society that a group of people becomes a cognisable element within the society by virtue of their common activity. Persecution may be part of that interaction and may contribute to the development of the social group. Thus similar actions engaged in by people may be a factor to be considered when examining whether a particular social group in fact exists or whether a person is a member of such a group. But all this is far removed from the present case where acts, without anything at all more, are said to define a particular social group.[42]
[42]Ibid at 406.
In Applicant A v MIEA, Dawson J noted that, as Black CJ had recognised, the distinction in Morato between what a person is (a member of a particular social group) and what a person has done or does should not be taken too far. His Honour pointed out that the distinction may sometimes be unreal, or may be appreciable but not illuminating:
The distinction between what a person is and what a person does may sometimes be an unreal one. For example, the pursuit of an occupation may equally be regarded as what one is and what one does. At other times, the distinction may be appreciable but not illuminating. For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts - that the persons involved are parents - is quite central to what they are.[43]
[43]Applicant A v MIEA (1997) 190 CLR 225 at 242-243.
Nevertheless, as Burchett J explained in Ram v MIEA, if harmful acts are done purely on an individual basis, because of what the individual has done or possesses, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’. His Honour illustrated the point by reference to ‘textbook’ examples from history:
In the infamous Reign of Terror during the French Revolution, men, women and children were guillotined because they belonged to a class seen as dangerous to the emerging democratic State. Similarly, in Cambodia under Pol Pot, teachers, lawyers, doctors and others who were seen as having, by their education and status, a capacity to influence public opinion, were regarded as potentially dangerous to the new order, and were therefore eliminated. ... In neither case was the motivation what a particular individual possessed or had done. ... The fact is that it was the whole class which, in each instance, was attacked. Individuals were not persecuted for what they had done as individuals, nor for what they possessed as individuals.
When the linked ideas expressed by the definition of a refugee come to be applied to less clear examples, it remains important to keep steadily in mind the essential unity of the conception. ... When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is “for reasons of” his membership of that group.[44]
[44]Ram v MIEA (1995) 57 FCR 565 at 568-569.

Ultimately, whilst in some instances what a person does can be relevant to determining whether that person belongs to a particular social group, the issue is the identification and characterisation, for the purposes of the Convention, of the social group to which the person is said to belong.[45]
[45]Pepaj v MIMA (unreported, Federal Court of Australia, Merkel J, 25 November 1998) at 5.
Over the course of the applicant’s various submissions and his attendances at hearings before the Tribunal, it became apparent to the Tribunal that there were articulable elements in his claim set that should be considered in an interrelated fashion. When these interrelated elements are taken together they have the capacity to be characterised in terms of membership of a particular social group on the basis that objectively they amount to an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle. In the applicant’s case, this objectively identifiable interrelated claim set involves: his Turi tribal identity; his moderate, but sincere, Shia Muslim beliefs; his profile as an academically and secularly qualified professional; and, his status within the Burkai community as a member of a prominent family. These characteristics are readily capable of being articulated in terms of a particular social group for the purposes of the refugee assessment at s.36(2)(a) of the Act.
At the hearing with the applicant on 3 April 2018, the applicant’s agent was invited to make written submissions specifically addressing the applicant’s claims for protection in terms of such a particular social group. In a written submission dated 24 April 2018 the applicant’s agent specifically addressed this matter in terms of the particular social group of ethnically Turi Shia professionals from the Kurram District, Khyber Pakhtunkhwa, Pakistan throughout that country at [31] to [46]. Without wishing to replicate this information in its own decision, the Tribunal acknowledges the clarity and utility of the written submissions made in this instance by the applicant’s representative. The Tribunal notes that the information survey includes reference to relevant country information including, but not limited to, the 2016 DFAT Thematic Report on Shia’s in Pakistan;[46] online news reportage;[47] the 2017 report of the UNHCR;[48] and the Immigration and Refugee Board of Canada,[49] all of which clearly indicate that the particular social group, Shia professionals from the Kurram District, Khyber Pakhtunkhwa engaged in both religious and secular occupations can be identified as being susceptible to persecution by agents of harm in that country for that essential and significant reason.
[46]DFAT Thematic Report – Shias in Pakistan (15 January 2016) at [4.16].
[47]Raja, R.H. “The Trivialization Of The Ongoing Shiite Genocide In Pakistan.” 05/31/2017
[48]UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan.” January 2017 (available at: accessed 23 September 2019) at p58.
[49]Immigration and Refugee Board of Canada “Pakistan: How Shia Muslims differ from Sunnis; treatment of Shias, particularly in Lahore and Multan; government response to violence against Shia Muslims.” (2010 - December 2013) at [2.1].
The Tribunal notes the foregoing country information survey submitted by the applicant’s representative fairly summarises the relevant available sources of country information. This makes it clear that Shia Muslim professionals engaged in both religious and secular occupations appear to have a particular profile equivalent to what one would expect as characterising a particular social group for the purposes of the refugee assessment, the Tribunal notes that what is missing from this assessment in the submissions is much direct consideration of how such a profile may be exacerbated by a Turi ethnic identity. In this respect, the Tribunal notes the following country information contained in the most recent DFAT country information assessment for Pakistan:[50]
[50]DFAT Country Information Report Pakistan (20 February 2019) at 15.
Violence Against Turis
3.21. While Turis are not visually distinctive, their concentration in a small geographic area in and around Parachinar makes them vulnerable to attack. Groups such as Tehreek-e-Taliban Pakistan (TTP) have carried out attacks directed at Turis because of their Shi’a faith over a significant period, particularly from around 2008 up until the beginning of counter-terrorism military operations in 2014. Operation Zarb-e-Azb and associated anti-terrorism activities led to a significant decrease in the number and severity of attacks on Turis in 2015 and 2016. However, three large-scale attacks targeting Turis in Parachinar occurred during the first six months of 2017. On 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar; on 31 March 2017 a suicide bomber attacked a Shi’a place of worship (imambargah) in Parachinar; and on 24 June 2017 two devices detonated in a market in Parachinar. These attacks ostensibly targeted Turi Shi’a because of their religious affiliation, and killed more than 120 people.
3.22. Large numbers of Turis were displaced during counter-terrorism operations in the FATA in 2014-15. The majority of these people have since returned to their homes, although in many cases fighting caused extensive damage to houses and fields. In addition, ongoing security measures are restricting Turis’ movements, limiting their access to essential services and trade opportunities. Because of their location—in a part of the FATA that extends into Afghanistan like a peninsula—Turis often travel to other parts of Pakistan via Afghanistan. Tighter border control measures have also restricted this movement.
3.23.Turis also face some risk of violence while travelling by road to Iran and Iraq for Shi’a religious pilgrimage purposes. While Turis are not visually distinguishable from other Pashtuns, they can often be identified if stopped by militants because of their accents or because of identity cards bearing distinctively Turi names.
3.23.DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.
In a further submission on behalf of the applicant by his representative dated 10 September 2019, the following additional summary of current country information of relevance was received (source footnotes included):
A.Ongoing risk of persecution as a Shia Turi professional in Kurram
5.Despite the 2018 merger between, and 20 July 2019 elections in, the former FATA and KP province, Sunni extremists remain active, and the security situation for Shia Turis in Kurram in general, and professionals such as teachers in particular, remains volatile. The merger has been plagued by criticism, questions as to the viability of its structure and implementation, and legal challenges.[51] The elections themselves were surrounded by similar controversy[52] and postponed from 2 to 20 July 2019 due to security concerns in North Waziristan,[53] bordering Kurram.[54]
[51]See e.g. Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 20 February 2019 at [2.50]-[2.55], available at: Rahimullah Yusufzai, Challenges of FATA Merger, Institute for Policy Reforms, June 2018, available at: Ismail Khan, “KP govt points out flaws in Fata merger legislation”, Dawn, 2 June 2018, available at: Kalbe Ali, “Bureaucracy’s extensive role in post-merger Fata criticised”, Dawn, 9 June 2019, available at: Salman Bangash, “Areas of concern: Problems with the Fata merger”, Herald, 9 August 2018, available at: “Locals challenge FATA merger into K-P in top court”, Express Tribune, 11 June 2019, available at: Wajeeha Malik and Shakeeb Asrar, “Post-Merger Inaction in FATA: Expectations vs. Reality”, South Asian Voices, 10 July 2019, available at:
[52]See e.g. Haroon Janjua, “Will democracy take hold in Pakistan's restive tribal areas?”, DW.com, 19 July 2019, available at:
[53]See e.g. Sardar Sikander Shaheen, “16 KP tribal districts: polling deferred till July 20”, Business Recorder, 13 June 2019, available at: Fahad Chaudhry, “KP Assembly elections in Fata postponed till July 20: ECP”, Dawn, 12 June 2019, available at:
[54]See the DFAT Country Information Report Pakistan, 20 February 2019 at p 2
6.According to the 20 February 2019 DFAT Country Information Report Pakistan (DFAT Report) (underlines added):
a)     Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196) [in 2018] (at [2.96]);
b)     discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence (see Shi'a) and greater presence of the Taliban and Al Qaeda (at [3.19]);
c)     DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith (at [3.26]);
d)     In January 2016, one faction of the militant group Tehreek-e Taliban Pakistan (TTP) announced that it would target schools, colleges and universities with violent attacks. The message came two days after militants attacked the Bacha Khan University near Peshawar in Khyber Pakhtunkhwa province, killing 21 people. According to the former FATA Secretariat, more than 550 schools have been attacked between 2004 and 2017 in the former FATA (now Khyber Pakhtunkhwa) alone (at [2.33]).
7.According to a 20 August 2018 International Crisis Group report[55] (underlines added):
[55]International Crisis Group, Shaping a New Peace in Pakistan’s Tribal Areas, 20 August 2018, available at:
FATA’s merger with Khyber Pakhtunkhwa followed years of military operations against Tehreek-e-Taliban (TTP, Taliban Movement of Pakistan) militants. Those operations broke TTP’s hold over most of the tribal belt but also displaced millions of residents, destroyed homes and ruined livelihoods. Security in those areas has improved but remains fragile. Afghan insurgents, including Afghan Taliban factions and allied militants, maintain sanctuaries in FATA from which they conduct operations in Afghanistan. Human rights abuses, particularly enforced disappearances, continue, and the military still controls virtually every aspect of public life.
8.Based on the above and similar country information, in a 9 May 2019 decision in relation to a Shia Turi professional from Kurram,[56] the Administrative Appeals Tribunal (Tribunal) concluded (at [48], underlines added, footnotes omitted):
[56]1608734 (Refugee) [2019] AATA 2312 (9 May 2019)
Having regard to the information set out above the Tribunal accepts that there has been a reduction in levels of sectarian and terrorist violence overall in Pakistan, as well as in the applicant’s home region. Indeed the Tribunal notes encouraging news reports[17] which indicate that some Sunni families have begun retuning [sic] to Parachinar after years of displacement and have been welcomed back by elders of the Shia community and Turi-Bangash tribes. However, despite these relatively recent developments, the Tribunal is satisfied the situation remains fluid and that unpredictable and sectarian attacks do and may still occur in the former FATA, including in Parachinar. The Tribunal accepts that the Taliban and associated extremists have waged a long campaign of violence against Shias, and Turi Shia’s including in Parachinar. While it is acknowledged that the last significant attacks on Shia’s in Parachinar occurred in 2017 the Tribunal’s assessment of the country information is that despite security improvements and an ongoing military presence there nevertheless remains a militant presence in the former FATA which even if currently reduced has the ability to reassert itself given the prevailing conditions reported by DFAT and others.
9.Current South Asia Terrorism Portal (SATP) data supports the Tribunal’s analysis that there are ongoing sectarian attacks in the former FATA (KP province), including post-20 July 2019 elections, and against civilians:
a)   In 2019, there have been 42 incidents of killing, including 24 civilians;[57]
b)   In 2019, there have been 11 major incidents, including 5 incidents post-20 July 2019 elections, and 6 civilians killed and 14 civilians (+3 police officers) injured in Upper Dir District on 18 August 2019.[58]
10.Current news reports support the Tribunal’s analysis that there is an ongoing extremist threat, and an ongoing risk to Shia Turis in Kurram (underlines added):
a)   The rising attacks on SF [security forces] personnel in North Waziristan [bordering Kurram] and the increasing stridency of extremist diktats refutes Government and Army claims of having completely sanitised the area of terrorism;[59]
b)   The [KP] provincial police department, along with other security forces in the province has devised a comprehensive security plan for Muharram.
In this regard, the security administration of the province has decided to keep a keen eye on the border with Afghanistan to monitor the movement of unscrupulous elements. For this purpose, the government has decided to enhance vigilance, especially in and around districts where there is a substantial population of Shia community including Hangu, Kohat, Dera Ismail Khan, Haripur, Abbottabad, Nowshera, Mardan and the provincial capital of Peshawar.
Moreover, the government has given special consideration to the newly-merged districts of Khyber-Pakhtunkhwa such as Kurram;[60]
c)   Officials said that intelligence reports suggest militants could carry out attacks in the DI Khan, a district prone to sectarian violence and targeted attack beside Kurram tribal district … . […]
Meanwhile, in Kurram tribal district, all routes toward the mourning processions would remain close on Muharram 9 and 10, while special measures have been adopted for maintaining law and order situation in the district.[61]
11.For these reasons, despite the recent merger and elections, however promising, we submit that Sunni extremists are still a threat, and Shia Turis, especially professionals, such as the applicant, are still at risk in Kurram.
[57]South Asia Terrorism Portal, Datasheet – Khyber Pakhtunkhwa (till 7 September 2019), available at:
[58]South Asia Terrorism Portal, Khyber Pakhtunkhwa – Major Incidents: 2019, available at:
[59]Tushar Ranjan Mohanty, “Pakistan: Resurgent Terror In North Waziristan – Analysis”, Eurasia Review, 19 August 2019, available at:
[60]“Stringent security plan prepared for Muharram,” The Express Tribune, 26 August 2019, available at:
[61]Ramzan Seemab, “32 DI Khan schools to house police for Ashura security”, The Express Tribune, 8 September 2019, available at:
Accordingly, the Tribunal finds that, in combination with other immutable characteristics shared with the particular social group, Shia Muslim professionals engaged in religious and secular occupations, Turi ethnicity is an additional factor that may exacerbate the chance of persecution experienced by a member of that particular social group in: Khyber Pakhtunkhwa, Pakistan; throughout that country; and more widely within the region, depending on the motivation of the particular agents of harm. The Tribunal further finds that the applicant is a member of the particular social group: ethnically Turi Shia professionals from the Kurram District, Khyber Pakhtunkhwa engaged in religious and secular occupations.
Regrettably, the Tribunal notes that, on the basis of credible applicant submissions dated 18 July 2018, the implications of the foregoing country information have been all too real with respect to members of the applicant’s immediate family, now resident in the Kurram District, Khyber Pakhtunkhwa and who share many of the same immutable characteristics as the applicant himself. For example, it is accepted that the applicant’s brother Abid appears to have been the target of an attempted abduction on 15 January 2017, and his brother Wahid appears to have been the victim of extreme targeted sectarian violence in that region on 20 April 2018.

Findings of fact

After having had the opportunity of interviewing the applicant at multiple hearings, and after considering his considerable corroborating evidence, the Tribunal finds that he is a witness of truth. The Tribunal further finds that the applicant’s account of the events on which he sought to rely in his original claims for protection before the delegate at first instance should be accepted substantially in their terms.
To adopt the words of the Tribunal differently constituted in a recent, somewhat similar context, the Tribunal as presently constituted further finds that:
there has been a reduction in levels of sectarian and terrorist violence overall in Pakistan, as well as in the applicant’s home region. Indeed the Tribunal notes encouraging news reports[62] which indicate that some Sunni families have begun retuning to Parachinar after years of displacement and have been welcomed back by elders of the Shia community and Turi-Bangash tribes. However, despite these relatively recent developments, the Tribunal is satisfied the situation remains fluid and that unpredictable and sectarian attacks do and may still occur in the former FATA, including in Parachinar. The Tribunal accepts that the Taliban and associated extremists have waged a long campaign of violence against Shias, and Turi Shia’s including in Parachinar. While it is acknowledged that the last significant attacks on Shia’s in Parachinar occurred in 2017 the Tribunal’s assessment of the country information is that despite security improvements and an ongoing military presence there nevertheless remains a militant presence in the former FATA which even if currently reduced has the ability to reassert itself given the prevailing conditions reported by DFAT and others.
[62]Muhammad Irfan, ‘As Fata merges with KP, Parachinar’s Shias tell Sunnis it is time to come home’ June 28, 2018 ; ‘Sunni tribes start returning to Parachinar 11 years after displacement’

The available country information surveyed in foregoing paragraphs demonstrates clearly that the fluid and unpredictable security situation identified by the Tribunal as previously constituted with respect to Parachinar, raises equivalent concerns across the Kurram Agency.
On the basis of the foregoing findings, the Tribunal accepts the applicant’s claims to have attracted the unwanted attention of, and harassment from criminal thugs, sufficient to give rise on the part of the applicant, to a well-founded fear of persecution in Khyber Pakhtunkhwa, if he was to return to Pakistan. The Tribunal further finds that the essential and significant reason for that harm is that he is a member of the particular social group: ethnically Turi Shia professionals from the Kurram District, Khyber Pakhtunkhwa engaged in religious and secular occupations.
The Tribunal finds that, should the applicant return to his home in Burkai Village, Upper Kurram Subdivision, Kurram District, or elsewhere in Khyber Pakhtunkhwa now, or in the foreseeable future, there is a real chance that he will face serious harm from criminal thugs including Sunni extremist groups, the Taliban in Pakistan and secular criminal groups for the purposes of s.91R(1)(b) of the Act. The Tribunal further finds that the essential and significant reason for the harm would be the applicant’s membership of the particular social group, ethnically Turi Shia professionals from the Kurram District, Khyber Pakhtunkhwa engaged in religious and secular occupations for the purposes of s.91R(1)(a) of the Act, and that the conduct feared by the applicant is systematic and discriminatory for the purposes of s.91R(1)(c) of the Act.

State protection

In this case, the harm that the applicant fears from criminal thugs including Sunni extremist groups, the Taliban in Pakistan and secular criminal groups is from non-state agents and the applicant claims that the authorities in Pakistan cannot or will not protect him from that harm. The Tribunal notes the US Department of State’s most recent Human Rights Report for Pakistan[63] as stating that:
Civilian authorities’ failure to punish abuses contributed to a climate of impunity throughout the country. According to civil society sources, police and prison officials frequently used the threat of abuse to extort money from prisoners and their families. The inspectors general, district police, district nazims (chief elected officials of local governments), provincial interior or chief ministers, federal interior minister, prime minister, or courts can order internal investigations into abuses and order administrative sanctions. Executive branch and police officials have authority to recommend, and the courts may order, criminal prosecution.
The court system remained the only means available to investigate abuses by security forces. The National Commission for Human Rights (NCHR), established in 2015, may not inquire into any complaints against intelligence agencies and must refer such complaints to the concerned competent authority. The NCHR may seek a report from the national government on any complaint made against the armed forces, and after receipt of a report, can either end the process or forward recommendations for further action to the national government.
During the year the federal government continued to use military and paramilitary organizations to augment domestic security. Paramilitary forces, including Rangers and the Frontier Constabulary, provided security to some areas of Islamabad and continued active operations in Karachi. The military-led Operation Radd-ul-Fasaad employed civilian and paramilitary cooperation against militants throughout the country.
In January 2015, in response to the December 2014 attack on the Peshawar Army Public School, Parliament approved a constitutional amendment allowing military courts to try civilians on terrorism, militancy, sectarian violence, and other charges. The military courts’ mandate to try civilians was set to expire in January 2017, but Parliament extended it until January 2019. Civil society members expressed concerns about the use of military courts for trying civilian suspects, citing lack of transparency and redundancy with the civilian judicial system.
Police often failed to protect members of religious minorities–including Ahmadiyya Muslims, Christians, Shia Muslims, and Hindus–from attacks. Activists from Christian, Sikh, Parsi, and Hindu communities reported widespread distrust of law enforcement within their communities. They explained that community members frequently refrained from reporting crimes, because they believed the police would not act. They also accused law enforcement of treating minorities particularly harshly when they are accused of crimes, and described how police meted out collective punishment on the Christian residents of a Karachi neighborhood in May, after a Christian committed a crime against an intelligence officer. Police carried out unauthorized searches of people and property, arrested Christians at random, and threatened physical and legal retributions against the community at large unless community members brought forward the perpetrator.
Police agencies continued to professionalize and modernize through training, including on human rights. Some local authorities demonstrated the ability and willingness to protect minorities from discrimination and mob lynching, at great risk to their personal safety.
[63]2018 Country Reports on Human Rights Practices: Pakistan (as updated 13 March 2019). ( (accessed 20 September 2019)) at 1.d.
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.[64]
[64]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.[65] 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.[66] 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.
[65]Ibid at [28].
[66]Ibid at [29].
DFAT states that Pakistan’s army and paramilitary forces regularly conduct counterinsurgency operations in the former FATA and remote parts of Khyber Pakhtunkhwa, to increase government control in these areas. DFAT also states that a large number of people have been arrested on terrorism-related charges since the commencement of the National Action Plan (NAP) in December 2014 and Operation Zar-e-Azb, with a NAP-2 plan being formulated according to Ministry of the Interior announcements in 2018. There is also a growing sense of a decline in mass terrorist outrages. However, the Tribunal also notes that the same source indicates that successful prosecutions of those responsible for politically-motivated or sectarian violence are rare and (as noted by the International Crisis Group) only a small number of those arrested under the NAP belong to extremist groups.[67] The Tribunal also notes that the International Crisis Group’s most recent focussed briefing on the new province, remains critical of government responses to the general sectarian and politically motivated violence to date.[68]
[67]DFAT Country Information Report Pakistan (20 February 2019) at [5.2].
[68]ICG Shaping a New Peace in Pakistan’s Tribal Areas, Crisis Group Asia Briefing N°150, 20 August 2018.
The Tribunal further notes news articles that refer to complaints from residents in the region about the continuing insecurity and the inability of the State to provide protection from armed thugs, and portrays a prevailing atmosphere of fear and instability in the region. The Tribunal notes that news coverage has highlighted how atrocities continue to occur in close proximity to Pakistan’s military facilities.[69]
[69] (accessed 24 April 2017).
The Tribunal notes that the situation in the Khyber Pakhtunkhwa Province remains both dangerous and volatile, with continuing sectarian and criminal attacks. While the security situation appears to improve at times of active army patrols, there are clear indications that sectarian and secular violence in the area remain a daily fact of life. The Tribunal notes the long-standing nature and seriousness of the violence in Khyber Pakhtunkhwa, together with information which indicates that the authorities in Pakistan struggle to provide adequate security for the region’s inhabitants.
The Tribunal finds that the level of protection available to the applicant, either in Kurram District, or elsewhere in Khyber Pakhtunkhwa more generally, does not meet the level of protection that citizens are entitled to expect.[70] Accordingly, having found that the applicant faces a real chance of persecution from criminal thugs including Sunni extremist groups, the Taliban in Pakistan and secular criminal groups for the essential and significant reason of his membership of the particular social group, ethnically Turi Shia professionals from the Kurram District, Khyber Pakhtunkhwa engaged in religious and secular occupations, now or in the reasonably foreseeable future, the Tribunal further finds that he would not be afforded the level of State protection which citizens are entitled to expect.
[70]MIMA v Respondents S152/2003 (2004) 222 CLR 1.

Relocation

Having accepted that the applicant has a well-founded fear of harm in Kurram District, or elsewhere in Khyber Pakhtunkhwa more generally, the Tribunal must consider whether the well-founded fear of harm extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of harm.
In SZATV v MIAC[71] the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.[72] As Kirby J stated in that case, the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.[73]
[71](2007) 233 CLR 18.
[72]SZATV v MIAC (2007) 233 CLR 18 at [24].
[73]Ibid at [97].
In the context of what is reasonable, the Tribunal notes that a well-founded fear of being persecuted cannot properly be regarded as being localised if relocating carries with it the need to avoid persecution by “living discreetly”. In SZFDV v MIAC, the High Court emphasised that:[74]
it would not be a “reasonable” adaptation of the behaviour of an applicant … to expect the applicant to return to the country of nationality and to abdicate, or repudiate, a fundamental right of the kind included in the list of Refugees Convention-related grounds of “persecution”.
[74]SZFDV v MIAC (2007) 233 CLR 51 at [33] per Kirby J referring to Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40] per McHugh and Kirby JJ, and at [80] per Gummow and Hayne JJ.
As McHugh and Kirby JJ explained in Appellant S395/2002 v MIMA,[75] the Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps, reasonable or otherwise, to avoid offending the wishes of the persecutors.[76]
[75](2007) 233 CLR 51.
[76]Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], cited with approval in SZATVv MIAC (2007) 233 CLR 18 at [28].
In the context of relocation, therefore, the Tribunal accepts that it cannot be a reasonable adjustment, contemplated by the Convention, that a person should be required to relocate internally by sacrificing one of the fundamental attributes of human existence which the specified grounds in the Convention are intended to protect and uphold.[77]
[77]SZATVv MIAC (2007) 233 CLR 18 at [102], per Kirby J. The UNHCR, Internal Flight Guidelines, make a similar point at [19]: “Claimants are not expected or required to suppress their political or religious views or other protected characteristics to avoid persecution in the internal flight or relocation area.”
The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan. The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[78]
[78]Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.
The Tribunal accepts that, while the applicant’s profile derives from his lived experience and personal identity in his local community, the agents of harm motivated to persecute him for the essential and significant reason of his membership of the particular social group: ethnically Turi Shia professionals from the Kurram District, Khyber Pakhtunkhwa engaged in religious and secular occupations are not geographically limited to the applicant’s home area. Rather, as is evinced by the bulk of country information referred to above, those agents of harm operate in a relatively coordinated manner by means of networks of influence and with relative impunity throughout that country and represent a real chance of persecution being experienced by the applicant now and for the foreseeable future.
This approach to the matter of relocation was considered by Manousaridis J in SZSRQ v Minister for Immigration & Anor:[79]
[79]SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205 at [45] [emphasis added].
[W]hen considering the relocation principle, the decision-maker must address two distinct questions.
These are:
a)Having accepted that the claimant has a well-founded fear of being persecuted for a Convention reason if he or she returned to a particular region of the country of his or her nationality, is there a different region in that country where, objectively, there is no appreciable risk of the occurrence of the feared persecution?
b)If (a) is answered in the affirmative, is it reasonable, in the sense of practicable, to expect the claimant to be sent to that other region having regard to:
i.the particular circumstances of the claimant,
ii.the circumstances the claimant would reasonably be expected to face in the place of relocation, and
iii.the impact on the claimant of being sent to the place of relocation?
Therefore, in addressing the matter of relocation in the present context, the Tribunal is required to have regard to the following:
a)Firstly, whether there is a different region in Pakistan where, objectively, there is no appreciable risk of the occurrence of the applicant’s feared persecution; and
b)Second, if (a) is answered in the affirmative, whether it is reasonable, in the sense of practicable, to expect the applicant to relocate to that other region.

Summary

Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan in the reasonably foreseeable for the essential and significant reason of his membership of the particular social group; ethnically Turi Shia professionals from the Kurram District, Khyber Pakhtunkhwa engaged in religious and secular occupations. For all of the foregoing reasons 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) of the Act.

DECISION

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

Dr Colin Huntly
Member