1516299 (Refugee)
[2016] AATA 3791
•29 April 2016
1516299 (Refugee) [2016] AATA 3791 (29 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1516299
COUNTRY OF REFERENCE: Pakistan
MEMBER:Nicole Burns
DATE:29 April 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 29 April 2016 at 2:57pm
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 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 [in] November 2012 and the delegate refused to grant the visa [in] July 2013.
The Tribunal, differently constituted, affirmed the decision of the delegate on 3 April 2014. The applicant sought judicial review of that decision and the case was remitted to the Tribunal by judgement of the Federal Circuit Court of Australia dated [October] 2015.
The applicant appeared before the Tribunal on 31 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
A summary of the relevant law is attached.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has provided to the Department a copy of his Pakistani passport and other documents. The Tribunal accepts the applicant is a national of Pakistan and has assessed his claims against Pakistan as his country of nationality and his receiving country.
The applicant stated that he is from [Village], Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan. He was born on [date] which makes him now about [age] years old. He is of Pashtun ethnicity and is a Shia Muslim. He belongs to the Bangash tribe, as evidenced by his domicile certificate provided to the Department. He also claims association with the Turi tribe given his wife and mother are members of that tribe and the association of Shias with that tribe.
The applicant lived in Rawalpindi from 2003 until early 2012, prior to leaving the country, and worked there for a [company]. His wife and [children] stayed in Kurram Agency and he visited them regularly, depending on the security situation and road access. His wife and children currently live in Kurram Agency along with his mother, [siblings] and their respective families. His father, who has worked as [occupation], died [in] Kurram Agency in 2009 whilst the applicant was in Rawalpindi. The applicant told the Tribunal at hearing that none of his family members work, given the poor economic situation in Kurram Agency, and he financially supports them all from Australia.
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm from the Taliban or other Sunni extremists on return to Kurram Agency on account of his Shia religion. It has been submitted that the applicant is at a higher risk than other Shias as he is from the Bangash tribe of the Kurram Agency, a Pashtun Shia tribe[1]. Also because of his association with the Turi tribe. The representative has submitted that the applicant also faces a real chance of persecution on the basis of belonging to a particular social group of ‘Shias from Parachinar’.
[1] As set out in the representative’s written submission to the Tribunal dated 30 March 2016, received at the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts the applicant is a Shia Muslim, of Pashtun ethnicity who is a member of the Bangash tribe from Parachinar who has an association with the Turi tribe, as claimed. Independent sources indicate that Kurram Agency is one of seven Federally Administered Tribal Areas (FATA) in the north-west of Pakistan, bordered on the north and west by Afghanistan. According to Australia’s Department of Foreign Affairs and Trade (DFAT), Shias are represented across most of Pakistan’s ethnic, linguistic and tribal groups. Of these Hazaras are a predominantly Shia ethnic community and there are a range of other Shia communities in Pakistan that have tribal/ethnic identities including the Turis, Bohris, Baltis and some clans within the Bangash Pashtun tribes.[2] An International Crisis Group report from October 2009 refers to Sunni-Shia violence in Kurram assuming “tribe-versus-tribe dimensions” with conflict occurring between “the predominately Sunni Bangash tribe that supports the TTP” (Tekrik-i-Taliban Pakistan), and the Shia Turis, which is the dominant clan in Parachinar.[3] The Shia section of the Bangash tribe is also reported to live in Parachinar.[4] When asked at the Tribunal hearing if he has any specific concerns on the basis of his Bangash tribe membership on return to Kurram Agency, the applicant said his concerns are because he is Shia.
[2] DFAT Thematic Report Shias in Pakistan, 15 January 2016 at 2.9 – 2.10.
[3] International Crisis Group 2009, Pakistan: Countering Militancy in FATA, Asia Report N°178, 21 October, p. 6
[4] Taj, F. 2010, ‘The Punjabi and Pakhtun IDPs of Parachinar’, Daily Times, 16 January
The applicant has claimed an association with the Turi tribe on the basis of his mother and wife belonging to that tribe and the Shia association with that tribe. The Tribunal accepts that is the case and although not specifically argued, the Tribunal considers that the applicant may be imputed with an anti-Taliban political opinion on this basis, because Turis – all of whom are Shias – are known to have resisted the Taliban in the past.
The applicant left Kurram Agency before the most recent spate of violence began, in around April 2007, and does not claim to have experienced any threats or harm from the Taliban or other Sunni extremists in the past in Kurram Agency when he lived there prior to 2003 or during his frequent visits home from 2003 to 2012 when he lived in Rawalpindi. When asked at hearing how often he visited home during this period, the applicant replied that it depended on the situation: sometimes every three months, sometimes every seven or so months. He said from 2007 – which he referred to as ‘war time’ – he could not go home very often, despite wanting to see his children and family. He said the situation was very bad from 2007 up until now, with fighting, bomb blasts, and suicide bombs, often resulting in the closure of the main road connecting Parachinar to Peshawar and Islamabad (the Thal-Parachinar road). He said the road passes through mountainous areas where the Taliban and extremists hide and launch their attacks. After 2007 whilst living in Rawalpindi he used to travel home on public transport as part of a convoy with army vehicles at the front and back of the group. He said after 2007 his travel was very much restricted and the army convoys were not always available. When asked, the applicant said he did not experience any problems whilst travelling home (and returning to Rawalpindi) during this period, including from 2007, but noted that even with army protection there were risks, for example if the Taliban launched rockets or sniper attacks.
At the hearing the applicant stated that the road is still very dangerous and will remain so because the people (Sunnis) who used to live near the applicant and his family and lost their homes and properties are now all spread out along the road and they do not forget.
At the hearing the Tribunal asked the applicant if there was a specific reason why he left Pakistan in early 2012. He said that he thought one day he would be harmed, whether in Rawalpindi or along the road or at home: that as a Shia it was not safe anywhere. When asked who he fears on return to Kurram Agency now, given he has not lived there for 13 years, and why, the applicant said that if he goes to Parachinar he will have to support his family yet there is no work in Parachinar. Therefore he would have to go ‘elsewhere’ to find work to support them. He mentioned that around two weeks ago four Shias who crossed into Afghanistan have been kidnapped and no one knows what has happened to them.
The Tribunal accepts that there has been sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counter-insurgency campaigns. The Tribunal finds that the applicant has not been threatened or harmed in the past in Kurram Agency or specifically targeted by the Taliban, or any other extremist group because he is Shia or for any other reason. The Tribunal also notes that the applicant’s family members have not been directly threatened or targeted by the Taliban in the past, including his four brothers who remain living there. At hearing the applicant said the situation there is very fluid, one never knows when something is going to happen, and his brothers could be going to the city to collect the money he sends and be involved in a bomb blast or something.
Given these findings the Tribunal has considered independent country information about the security situation in Kurram Agency in assessing whether or not the applicant faces a real chance of serious harm for reasons of his Shia religion, Bangash tribe membership, imputed political opinion (because of his Turi association and Shia religion), or origins from Parachinar if he were to return to his home village in Kurram Agency now or in the reasonably foreseeable future.
At the Tribunal hearing the applicant provided a typed list of those (Shias) killed and injured in different parts of Pakistan, including Parachinar in 2015 which the applicant said was compiled by a friend in Australia, as well as a number of internet articles about attacks on Shias in Parachinar and other parts of Pakistan, which the Tribunal has considered.
In her written submission to the Tribunal the representative highlights, among other things, ongoing attacks against Shias throughout Pakistan as reported by organisations such as the South Asia Terrorism Portal (SATP) and Human Rights Watch World Report for Pakistan. With respect to Kurram Agency in particular, the representative highlights relevant information in the most recent DFAT country report and thematic report on Shias in Pakistan that indicates, among other things, that the TTP in FATA remain the “most potent military group in Pakistan”[5] and that Shias continue to face a threat from anti-Shia militant groups. Further, she argues, the volatile nature of Kurram Agency is recognised by many international organisations including the UNHCR[6] (2012) and the United States Department of State (2015)[7].
[5] DFAT Country Information Report Pakistan, 15 January 2016
[6] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14 May 2012
[7] United States Department of State, 2014 Report on International Religious Freedom – Pakistan, 14 October 2015
In her written submission the representative also referred to a March 2015 Wall Street Journal article[8] about a TTP splinter group and powerful warlord re-joining the TTP to resist the government’s military campaign and stepping up the general threat from extremists organisations.
[8] Wall Street Journal (Online), Three Pakistan Militant Groups Ally to Resist Government’s Military Campaign: Splinter group rejoins Pakistani Taliban and a powerful warlord enters the fold, 12 March 2015
Country information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban (primarily Turis). Reports indicate that in the first quarter of 2012 Shias continued to be targeted in Kurram Agency, with 30 security incidents in Kurram including 15 bomb attacks.[9] In July 2013 multiple bomb blasts in Parachinar were reported to have killed around 50 people and injured over 100.[10] However, as discussed with the applicant at hearing, there is country information that indicates that the situation has improved in the FATA, including Kurram Agency. This includes the following information.
[9] FATA Research Centre 2012, Security Report First Quarter 2012, p.12.
[10] The Express Tribune ‘Multiple blasts in Parachinar kill 50, injure 122’ (26 July 2013) available at >
The FATA Research Centre (FRC) said in its Annual Security Report 2014 that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014 and that a total of two incidents, one bomb blast and one target killing, were recorded during the reporting period, killing three people and injuring one. The bomb blast was a roadside bomb and the killing was of a tribal elder on his way to Sadda Bazaar from Central Kurram Agency.[11] A UNHCR report on a protection cluster mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram.[12]
[11] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, p. 46. The FATA Research Centre describes itself as a non-partisan, non-political and non-governmental research organization based in Islamabad. By contrast The Shia Post reported that 11 Shia Muslims were killed in Parachinar in 2014: see ‘311 Pakistani Shia Muslims Martyred in 2014’, The Shia Post, 1 January 2015, CISEC96CF1169.
[12] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.
More recently, in its Annual Security Report 2015 the FRC stated that the year marked a significant decline in terrorism-related incidents in the tribal areas of FATA. According to that report, militancy and counter militancy incidents were recorded from all the seven agencies of FATA in 2015, and the year remained turbulent with armed conflict between non state militant actors and law enforcement and security agents remained at its peak. However the report also noted that militant violence declined by 40% compared to 2014. It is also reported that out of the total casualties in FATA in 2015, almost 65% were militants. From a security point of view, the FRC reported that the most turbulent area during the outgoing quarter (of 2015) in FATA remained North Waziristan and Khyber Agencies where military operations against local militants is ongoing. With respect to Kurram Agency specifically the FRC reported as follows:
Kurrum Agency after remaining a peaceful in the year 2014, witnessed a surge in militancy related incidents in during the first quarter of 2015. The graph above illustrate [not reproduced] that 17 militancy incidents resulted in 93 causalities; 62 killings and 31 injuries. Shabak area in lower Kurram Agency remained the notably disturbed portion of the agency in this quarter. This area is densely forest populated and lies adjacent to North Waziristan Agency where a military operation is still underway. It is assumed that due to the ongoing military operation the militants have moved into the region. Mostly military convoys were targeted through IEDs and ambush attacks. In mid of February dozens of militants from Afghanistan attacked security picket in Shabak locality and intense firing took place between Pakistani security forces and the attackers.
...
In the second quarter of 2015 a nose dive in militancy incidents were recorded in Kurrum Agency. Total of seven causalities, including four deaths and three injured, were resulted in three security related incidents; two militants were killed while two civilians lost their lives and 2 others got injured. Similarly, one security personal was also injured in a terrorist attack.
Although military operations in the past have largely dismantled militant networks in Kurram however, militants under the banner of TTP are still operational in different areas of the central Kurram. For instance, two militants of the proscribed Tehrik‐i‐Taliban Pakistan (TTP) were killed in a clash with gunmen in the Tor Thoot area in the central parts of Kurram Agency while in another incident two armed groups traded gunfire in the hilly area of Tor Toot in which two TTP militants, including commander Mullakhel, were killed. However, none of the militant outfits claimed responsibility for the attack.
In the last two quarters of 2015 from July to December 2015, Kurrum Agency witnessed a surge in militant activities. A total of 6 militancy and counter militancy incidents were recorded, around 50 % higher the previous quarter from April to June 2015 in which resulted in 28 causalities; 20 killings and 8 injuries. Likewise, 35 people were killed while 71 others were critically wounded in 9 incidents of militancy and counter militancy, 33 % higher than the 3rd quarter. The areas remained turbulent during the current quarter of 2015 included Spar Kot and ToraWarai in Central Kurram, Sarka area, Bagan area, Yaqoobi village in Lower Kurrum agency[13].
[13] FATA Research Centre, Annual Security Report 2015
In its 2015 ‘FATA Assessment’ report the South Asia Terrorism Portal (SATP) reported that civilian and security forces fatalities in FATA had recorded a seven year decline, while overall fatalities had been higher due to the increase in terrorist fatalities under the ongoing military operations in North Waziristan Agency and Khyber Agency. It reported that total fatalities through 2014 stood at 2,863, including 2,510 terrorists, 194 security forces personnel and 159 civilians; as compared to 1,716, including 1,199 terrorists, 319 civilians and 198 security forces personnel in 2013. While SATP noted the number of major incidents (each involving three or more fatalities) in FATA increased by 48.87 per cent in 2014 compared to the previous year, this was said to be principally due to the government’s counter-insurgency operations with the overwhelming number of fatalities occurring among groups registered as terrorists rather than civilians or security forces personnel. SATP reported that other parameters of violence such as suicide attacks, explosions and sectarian attacks remained low throughout 2014 with significantly less casualties from both suicide attacks and incidents of explosion. SATP recorded that sectarian violence in the region also registered a steep decline[14].
[14] SATP ‘FATA Assessment 2015’
Other sources confirm that the overall security situation in Pakistan has improved. For example, the UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation[15] reports that the Austrian fact Finding Mission to Pakistan undertaken in July 2015 found an overall improved security situation since its previous mission in 2013. The 2014 report of the Pakistani Institute for Peace Studies (PIPS), indicated a 30% decrease in the number of terrorist attacks carried out by militant, nationalist/insurgent and violent sectarian groups in Pakistan in 2014 compared to 2013[16].
[15] UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015
[16] European Asylum Support Office, Country of Origin Information Report Pakistan Country Overview, at p53 citing PIPS, 2014, Pakistan Security Report, 2015, p. 7.
The most recent DFAT advice in relation to Shias in Pakistan indicates that the security situation in Kurram Agency has improved. Specifically in the DFAT report on Shias in Pakistan dated 15 January 2016 it was stated that:
·According to the FATA Research Centre (‘FRC’), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015.
- DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015.
- Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.
- More than 3,700 families returned to their places of origin in 2014, including Parachinar and surrounding villages in upper Kurram. This represents approximately 25 per cent of those formerly displaced - most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October – November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.
- According to the SATP, there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight.
- FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.
- DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb.
- DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies[17].
[17] DFAT Thematic Report Shias in Pakistan, 15 January 2016 at 4.31 – 4.36
At the hearing the Tribunal discussed with the applicant about the indications in such country information that there has been a decline in sectarian and generalised violence in Kurram Agency, including the information in the latest DFAT report, and that most recent fatalities have been of militants and security forces in the area, not civilians. The applicant said that whilst there may have been fewer incidents, suicide bombings have not stopped and it is not safe. To illustrate his point he referred to the 13 December 2015 bomb blast at a market in Parachinar and provided an article[18] about the attack. In terms of other indicators of an improved security situation identified, the applicant said he estimates that around 300 IDPS have returned, not over 3000 as put forward by DFAT, based on (his) reading of the news. Also he has heard that the IDPS have not returned to the city of Parachinar, and speculated that they have returned to the countryside. He also questioned where they could live given their houses were destroyed. The applicant said that the army’s operations are counter-productive, because militants carry out suicide bombings in other parts of the country such as Parachinar or Peshawar each time the operation continues in areas like Waziristan. With respect to DFAT’s assessment of a low level of generalised violence in Kurram and Orzkzai Agencies, the applicant said that these areas will always be violent, particular Orzkzai with an ongoing military presence there.
[18] From ShiaMarkaz.com (undated)
With respect to DFAT’s assessment in its January 2016 thematic report on Shias in Pakistan about the substantial reduction in the level of generalised violence throughout the country since the commencement of the government’s counter-terrorism operation Zarb-e-Azb in June 2014, the representative refers to a July 2015 report from the Jamestown Foundation[19] critical of any sustainable success of the operation, referring to similar offensives in FATA in 2002 and 2009.
[19] Jamestown Foundation, The Successes and Failures of Pakistan’s Operation Zarb-e-Azb, 10 July 2015
The Tribunal has had regard to the applicant’s concerns about ongoing insecurity in the region as well as the representative’s oral and written submissions, including about the nature of terrorism and how it operates. That is she argued that the situation remains stable for a period of time then escalates (referring, among other things, to Defence R& D Canada’s analysis of terrorism group responses to government countermeasures). She argued that this cycle has been continuous in Kurram Agency and FATA more broadly. The Tribunal acknowledges these concerns and that the situation can change and fluctuate, as indicated in the FRC’s annual security report for 2015 cited above for example, and that there is an element of vulnerability in the government security measures, as illustrated by the December 2015 attack in Parachinar (discussed in more detail below). However, taking into account the most recent DFAT assessment, as well as country information from other sources as discussed, the Tribunal is of the view that the country information indicates that a level of security has been restored to Kurram Agency.
The Tribunal notes that at hearing the representative submitted that the return of IDPS to the region will place stress on infrastructure and resources there, as highlighted in an August 2015 report by the World Food Program. The Tribunal accepts that may be the case and that the return of IDPS may place strain on scarce resources and services. However whether this will result in a resumption of sectarian or other conflict in the region is, at this stage, purely speculative.
The Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency where the applicant is from, as detailed in the country information discussed including as set out in the representative’s submission. This includes an IED attack in a clothes market in Parachinar on 13 December 2015 which killed at least 25 people and over 70 injured[20], as highlighted by the applicant in his oral evidence to the Tribunal. Nonetheless the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre. In this context the Tribunal considers it would be premature to conclude that this attack on 13 December 2015 - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe with Turi connections such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before it concerning the security situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future.
[20] Mehdi Hussain, ‘Burying their dead: Parachinar blast victims laid to rest’, The Express Tribune (Pakistan), 15 December 2015, CXBD6A0DE16980.
The Tribunal accepts DFAT’s assessment regarding the risk of generalised violence in the FATA and accepts that there is some level of risk to the applicant in the context of generalised violence. However it finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm based on his Shia religion, his Bangash ethnicity, an imputed political opinion (including an association with Turis), or his origins from Parachinar, or any other Convention reasons.
The Tribunal accepts that there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured. The Tribunal finds, however that overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards. For reasons set out above whilst the Tribunal accepts that the applicant is a Bangash Shia from Parachinar, of the Pashtun ethnicity, with an association with the Turi tribe, it does not accept that he has been specifically targeted or harmed by the Taliban or other Sunni extremists in the past, nor have any of his family members despite the latter remaining in the area. For these reasons when combined, the Tribunal finds remote the chance the applicant would be seriously harmed by the Taliban, other Sunni extremist groups, former Sunni neighbours or anyone else for reasons of his Shia religion, imputed anti-Taliban political opinion (because of his Shia religion and association with Turi tribe), as a member of a particular social group of ‘Shia from Parachinar’ or his Bangash tribe membership, on return to Kurram Agency. The Tribunal therefore finds that the applicant does not face a real chance of serious harm for a Convention reason on return to Kurram Agency now or in the reasonably foreseeable future.
The Tribunal is also satisfied on the evidence before it that the applicant would be able to practice his (Shia) religion on return to Kurram Agency, as he had in the past. At the hearing the applicant said he was able to practice his religion freely in Kurram Agency because all Shias lived in his area. On visits home when he lived in Rawalpindi, the applicant said he would take part in Moharram or other religious processions or activities, if they coincided with his visits home (which he said usually lasted around a week).
The Tribunal has considered the applicant’s claim that he had to leave Kurram Agency in the past to find work in Rawalpindi and supported his family from there. Also his claim that currently none of his family members work given the poor economic conditions in Kurram Agency and that he supports them from Australia and that if he goes to Parachinar he will have to support his family but as there is no work in Parachinar he would have to go elsewhere to find work to support them. The representative has submitted that there is more than remote chance that the applicant would be seriously harmed by the TTP or others as a Shia Muslim should he travel to and from Kurram Agency, referring to the DFAT Thematic report assessment that travel in parts of Pakistan can be dangerous for all Pakistanis, regardless of sectarian, religious and ethnic affiliations and that travellers in remote areas are at greater risk of criminal or militant violence because they are further away from security forces, noting that many roads in FATA (among others) fit this profile[21]. The representative submitted that the applicant’s fear of harm is significantly heightened as a member of a particular social group of ‘Shias from Parachinar due to his need to travel between Kurram Agency and Rawalpindi as a member of this particular social group.
[21] DFAT Thematic Report Shias in Pakistan, 15 January 2016 at 4.40
The Tribunal accepts that the applicant moved from Kurram Agency to Rawalpindi in 2003 for employment and that he continued to work there until his departure from Pakistan in 2012. However it notes that this took place in large part during the conflict, which worsened from 2007 resulting in the closure (periodically) of the main road from Parachinar to the rest of Pakistan and other security-related restrictions on the movement of goods and services in and out of the region, which adversely affected the local economy. However, as discussed above (and at the hearing) the security situation has improved significantly since 2014 in Kurram Agency and there are fewer restrictions on the local economy as a result. The Tribunal notes in this regard DFAT’s advice as referred to earlier that the Thal-Parachinar road remains open, that federal security forces continue to maintain armed checkpoints along the road (which is used by both civilian and military vehicles) and there have been no major security incidents on the road in 2015[22]. This indicates to the Tribunal that Kurram Agency is no longer cut off from the rest of Pakistan and whilst it may be difficult for the applicant to obtain employment on return, there is nothing to suggest that he would not be able to secure any employment at all on return to Kurram Agency as claimed. The applicant refuted DFAT’s findings about the Thal-Parachinar road at hearing, noting that he has witnessed ‘these things’ on the road; that extremists groups will just fire upon people using the roads; that the government does not actually chase them (that is the TTP and all extremists, including Islamic State (IS)); and the international media does not cover incidents on the road. He also said a car was shot at recently only half a kilometre away from the security checkpoint, recounted to him by a family member told him over the phone. The Tribunal does not agree that the international medical does not cover incidents along the road, noting there is significant reporting of incidents in FATA, including the Thal-Parachinar road. The Tribunal has had regard to the applicant’s concerns, but has given weight to DFAT’s advice about that the road remains open and there is improved access by both military and civilian vehicles.
Islamic state (IS)
[22] DFAT Thematic Report Shias in Pakistan, 15 January 2016 at 4.33
At the Tribunal hearing the applicant said about two months ago Islamic State (IS) members spread pamphlets in Parachinar, according to a news report. He provided an internet article from Shiitenews (not Dawn as the applicant had indicated at hearing) titled ‘Daesh’s pamphlets found in Parachinar, terrorist groups threatened to attack’, dated 14 March 2016, which is not complete. The representative attached a full article published by Shia News on 25 January 2015 and an English translation to her written submission to the Tribunal which, she argues, refutes DFAT’s assertions in its most recent country report on Pakistan that there is no credible evidence of an active or organised IS presence in the country (set out below(elsewhere)). The following paragraph from the article is highlighted:
[d]uring this period threat pamphlets from terrorist group Daish were distributed in different areas in Kurram Agency several times. It has not been just a threat – more than a dozen attacks with rocket launchers and missiles have taken place in Kurram Agency so far. However, to this day the local government has neither reprimanded Daish nor the tribes supporting Daish[23].
[23] Shia News [online], ‘Threat Messages From Daish In Parachinar’, 25 January 2016, available at:The representative also referred to an April 2015 article by Jamestown Foundation[24] which refers to the emergence of ‘IS Khurasan’.
[24] Jamestown Foundation, ‘Wilayat Khurasan’: Islamic State Consolidates Position in AfPak Region, 3 April 2015, Terrorism Monitor Volume: 13 Issue: 7
At hearing when asked if any of his family members in Parachinar had received the pamphlets allegedly from Daesh/IS, the applicant said they were dropped on the road that connects Sunni and Shia areas (Saddar) not at individual homes. Asked what was written in the pamphlets, the applicant said he has not read them but has heard from others that IS stated they can attack anytime. When asked who he has heard this from specifically, the applicant said it was his brother, whom he speaks to over the phone every day.
As mentioned, DFAT assess in its latest report on Pakistan about IS state as follows:
Despite occasional media reports of minor militant groups claiming allegiance to Islamic State (IS), such as TTP splinter group Jundullah, and arrests of alleged IS members, there is no credible evidence of an active or organised IS presence in Pakistan. DFAT assesses such claims as rhetorical or aspirational in nature.[25]
[25] DFAT Country Information Report Pakistan, 15 January 2016 at 2.37
When this information was discussed at hearing the applicant said that these groups – TTP, IS, Jundullah – are all extremists and only target Shias. He added that he heard John Kerry, the United States Secretary of State, during an interview on CNN state that they (IS) are targeting Shias (in Pakistan). The applicant said the interview was maybe around two months ago.
The Tribunal acknowledges some evidence of limited activity on the behalf of IS in Pakistan. However the Tribunal does not accept on the limited evidence provided by the applicant regarding the alleged activities of IS in his area, including the Shia News article purportedly reporting (among other things) about IS pamphlets containing a claim that they will attack Kurram Agency (and that more than a dozen attacks have already taken place in Kurram Agency) that they will start targeting the people of Parachinar or in Kurram Agency, particularly Shias, in the reasonably foreseeable future. The Tribunal notes that the extract referred to in the article from Jamestown Foundation does not indicate that there is an IS presence in Kurram Agency. Based on the DFAT advice set out above the Tribunal does not accept that there is an active or organised IS presence in Pakistan and finds remote the chance the applicant would face serious harm from IS on return to Kurram Agency now or in the reasonably foreseeable future.
Conclusion – Refugee grounds
Considering the applicant’s claims both individually and cumulatively, as a Bangash Shia from Parachinar, Kurram Agency with Turi connections, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Shia religion, his Bangash tribe membership, an imputed political opinion based on his Shia religion and Turi tribe association if returned to Pakistan now or in the reasonably foreseeable future. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).
Complementary protection
On the basis of the applicant’s claim to be a national of Pakistan and his Pakistan passport, the Tribunal finds that Pakistan is the applicant’s receiving country for the purposes of s.36(2)(aa).
As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
It is submitted that country information (referred to in the representative’s written submission to the Tribunal) supports the assertion that should the applicant return to Parachinar, there is a real risk that he would be killed or suffer significant harm from the TTP and other terrorist organisations, alternatively as a consequence of Operation Zarb-e-Arb, in the reasonably foreseeable future. It is submitted that the significant harm the applicant is at risk of suffering is as follows: arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; and/or degrading treatment or punishment.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will be face serious harm from the Taliban or other Sunni extremists in Kurram Agency for reasons of his Shia religion, Bangash tribe membership, an imputed (anti-Taliban) political opinion based on his Shia religion and Turi association, or his membership of a particular social group of ‘Shias from Parachinar’ if returned to Pakistan now or in the reasonably foreseeable future. The Tribunal has also found that the risk of the harm to the applicant in the context of generalised violence in the FATA, and in relation to clashes between military and security forces (including as part of Operation Zarb-e-Arb as submitted) is remote and not real. The Tribunal did not accept the applicant would have to leave Kurram Agency to find work and therefore does not accept he faces a real chance of serious harm in travelling on the road to and from that area. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[26] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Taliban or other Sunni extremists or anyone else as part of the generalised or sectarian violence or for any other reason as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan for these reasons.
[26] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
On the material before it, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Nicole Burns
MemberAttachment – Summary of Relevant Law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.
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 policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Key Legal Topics
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Immigration
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Statutory Interpretation
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