1516745 (Refugee)

[2017] AATA 339

1516745 (Refugee) [2017] AATA 339 (13 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516745

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Amanda Goodier

DATE:13 February 2017

PLACE OF DECISION:  Perth

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

Statement made on 13 February 2017 at 10:38am

CATCHWORDS
Refugee – Protection visa – Pakistan – Social group – Tertiary qualified –Overseas educated – Professional occupation – Perception of wealth – Adoption of western influences – Regarded as anti-Taliban – Internal relocation possible

LEGISLATION
Migration Act 1958, ss 5(1), 5(1), 36, 36(2)(a), (aa), (b), (c), 36(2A), 65, 91R, 91R(1), 91R(1)(b), 91R(1)(c), 91R(2)
Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1.
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Chan v MIEA (1989) 169 CLR 379 at 396.

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] November 2015.  

3. The applicant appeared before the Tribunal on 19 January 2017 to give evidence and present arguments.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.   In considering these issues, the Tribunal has applied the law set out in Annexure “A” and has carefully considered all of the applicant’s claims and evidence as well as the independent information referred to by the delegate in their decision which was attached to the application for review as well as the independent country information referred to in this decision and set out in Annexure “B”. 

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of reference and home area

6. The applicant claims to be a citizen of Pakistan and provided various documents in support of his identity.  In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Pakistan and that Pakistan is his country of nationality and receiving country.

7. The Tribunal is satisfied on the evidence before the Tribunal, the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s36(3).

8. The applicant claims to have been born in [Village 1], [region], [Agency 1], Khyber Pakhtunkhwa (KPK).  He provided several maps to the Tribunal at hearing with his village marked on it.  As indicated to the applicant, the Tribunal noted that his village was located in the Federal Administered Tribal Areas (FATA) of Pakistan and not the KPK.  It was very close to the border and close to Peshawar District but just within FATA.  The applicant’s evidence was that his family are from [Village 1] and where they continue to live.    

9. The Tribunal finds that the applicant’s home area is [Agency 1], FATA, Pakistan.

   Background and summary of evidence

10. A copy of the delegate’s decision was provided by the applicant to the Tribunal and set out the applicant’s history and migration history as well as providing a summary of his material claims.

11. The applicant was born in Pakistan on [date]. He indicates he speaks, reads and writes English, [language], Urdu and Pashtun.  He belongs to the Pashtun ethnic group and his religion is Sunni Muslim. 

12. He resided in [Country 1] in 2007, [Country 2] from October [year] to July [year] and Pakistan until February 2011.  He also resided in Pakistan during the completion of his [training] in [year]. 

13. The applicant provided a copy of a letter from [name], Advocate, stating that in their vicinity and surrounding areas of District Peshawar, especially [Village 1], Talibinisation has reached its peak.  [Village 1] is adjacent to [region] which is a safe place for Taliban and they have control of most of the area.  Government influence has gone and they have adopted their own law.  They have destroyed all the education institutions and no person can read or teach there.   They are involved in grabbing money from people for ransom and no person can join Government service as it is un-Islamic.  People are living a miserable life and most have left the area and living life in refugee camps.  People have been brutally killed for not obeying their orders. 

14. The applicant provided evidence of the completion of his [professional] studies in [Country 2] and his [training] during [year] at [a facility], Abbottabad.  He commenced his studies in the autumn session [year] at [a] University, [Country 2] and graduated after completing his 12 months [training] at [a facility], Abbottabad in June []  He subsequently completed a [course] in Australia.

15. The applicant has been employed while in Australia as a [occupation]. 

16. The applicant provided a statutory declaration attached to his application for protection. 

17. The delegate’s decision refers to the applicant’s father being employed as a [occupation] in [Country 1] for over 25 years.  In September 2005 he travelled to [Country 2] to study a [course], residing in [Country 2] until he completed his course in June [year] apart from completing a one year [training] in Abbottabad from [month] to [month] [year].  He applied for a [temporary] visa [in] January 2011 in Pakistan which was granted [in] February 2011.  He travelled to Australia [in] February 2011 for [a] course from which he withdrew and changed to a [another course], gaining the certificate in January [year]  He then obtained a [further qualification] in March [year] and [another qualification] in October [year].  He applied for this visa prior to the ceasing of his [temporary] visa in January 2014. 

18. The applicant claims that he will be abducted/killed by the Taliban because he was educated overseas ([Country 2] and Australia).  He claims that he may be employed as a [occupation] with the government which will impute him as holding western ideals and being against extremist groups.  He also claims that if he obtains employment in any area, his foreign education will be known and he and his family will be extorted by extremist and criminal groups due to being perceived to be wealthy.  His family will be targeted once this knowledge becomes known due to their attempts at hiding his existence and being related to him.  He is unable to relocate anywhere outside his village as he does not have the contacts and no funds to support himself and he will be targeted anywhere because he is educated.  The applicant claims that he and his family have never been targeted in Pakistan as his father has a beard (which ensures the Taliban do not notice him) and they have hidden his existence since 2005 (to keep the applicant and his family from notice by the Taliban) and that apart from his 12 months in Abbottabad, he has lived outside Pakistan since 2005.  He is also at risk due to his profession as a [occupation], particularly as he will have to work for the government, being identified as wealthy and because he obtained his degree from overseas.    

19. He claims that when he returned to Pakistan at the completion of his studies he stayed in Islamabad for a short time of less than two weeks to apply for his [temporary] visa for Australia.  His father did not want him to return to the village as that would place the family under threat.  His father wanted him to go to Australia to continue his education and try to have a better life for himself and his family for whom he could send money from his earnings eventually.  The applicant claims that people are targeted for money if they are returning from abroad or have a business.  The Taliban have attacked and harmed people playing music.  The Taliban have also given threat letters to people and if the recipient does not do as requested, the Taliban will kill them.  The Taliban have much influence in the [name] area.  The police and army are not able to provide protection.   

20. A detailed research report dated December 2013 was provided by [name] Legal with his application form to the department in support of the applicant’s claims.  It was submitted that there is a real risk the applicant will suffer significant harm if he returns to his home area and that he is unable to relocate.  He is unable to obtain the protection of the Pakistani authorities.  The submission refers to the applicant briefly returning to Pakistan to apply for his visa.  He was so fearful he stayed in the capital Islamabad.  It is submitted that the applicant would be perceived as a foreign educated [professional] with Australian qualifications in [tertiary course].  His family have deliberately withheld information about him from extended family members and the community to protect the family from being targeted due to a perception they would be wealthy and support the west.   It is submitted that if he returns to his home, the Taliban will find out and target him.  The submission refers to a range of country information prior to December 2013.  The submission also refers to a number of terrorist and targeted attacks by the Taliban.  It is submitted that the applicant is unable to relocate as he has no relatives living anywhere else in Pakistan and as he has no outside connections he has no connections into a broader family environment from which to draw sustenance and support.  He has no money and is unable to plant himself in a new area of Pakistan and support himself.  The Taliban has the ability to glean information and as a newcomer to an area would become aware of his presence.  He would be targeted because of his foreign education and professional and academic skills.  He cannot move to a non-Pashtun area.  His family would become more vulnerable to targeting. 

21. The delegate accepted the applicant was educated overseas and held a [professional] degree but did not find he held a profile that would make him a target for extremists or criminal groups.  The delegate was not satisfied he fit the profile of those targeted in Pakistan.

22. The applicant confirmed at hearing that his then representative assisted him to prepare the application, he was aware of the contents that were true and accurate and there was nothing he wished to add or change.

23. The applicant confirmed at hearing that his mother, [and siblings] remain living in their home village.  He has [siblings] who are married and living in [location].  He confirmed that his father had been working in [Country 1] for the last [number] years and returns to the home village to stay for about [number] months every [number] months.  His [siblings] do not attend school because of the Taliban threat.  The applicant told the Tribunal that his father is very devout and has a long beard.  He avoids scrutiny by the Taliban and has kept the applicant a secret to avoid being targeted by the Taliban or other criminal elements. 

24. The applicant told the Tribunal that his father has supported him through his studies.  When the applicant returned to Pakistan he attempted to seek employment with non-government agencies like the Red Cross but his father was against it as his father felt this would cause him to be a target and also cause the family to be harmed if the Taliban became aware the applicant was working for a non-government agency.  His father told him to travel to Australia for study.  He originally enrolled in [a certain] course but it was not [professional] enough so he discussed it with his father and enrolled in [other] courses which he completed.  He told the Tribunal he and his family did not have enough money to start a business but the qualifications may help him in a [professional] career.  He has attempted to have his qualifications recognised and has sat the test but due to the stress of this process did not prepare and failed.  He will attempt to sit it again. He would like to do further studies but cannot afford to do so.  He has worked as a [occupation] while in Australia and tried to apply for a [certain permanent] visa but did not have the right skills and qualifications.    

25. The applicant told the Tribunal he wishes to stay in Australia, he loves this country and can see a future here for himself.  He wishes to undertake further study and complete further studies in [a certain field] but is unable to afford to do so.  He wishes to become a permanent resident.  The Tribunal accepts the applicant’s evidence that he wishes to remain in Australia.

26. The applicant provided to the Tribunal a copy of the smarttraveller.gov.au advice for Pakistan issued 23 December 2016 advising against travel to Balochistan, FATA and KPK and advising a reconsider your need to travel to Pakistan overall. The applicant also provided travel advice provided by the UK Home Office and US State Department warning against travel to parts of Pakistan.  The Tribunal has regard to the advices provided but notes they are issued with respect to travel by foreign citizens to Pakistan.  The Tribunal has regard for the submissions provided to the department by [name] Legal but notes the submission and country information is prior to December 2013 and there are more recent, relevant information to which the Tribunal has regard and gives weight to.  The Tribunal gives weight to the reports of the Australian Department of Foreign Affairs (DFAT) as these are authoritative and they have been charged with the provision of advice to the Australian Government.

    Assessment of claims

27. The applicant fears harm from the Taliban for the following reasons:

    ·He has been educated overseas;

    ·He is educated and holds a [qualification] from [Country 2] and several qualifications in [courses] completed in Australia;

    ·He has resided and been educated in a western country;

    ·Because he has been educated overseas and resided in a western country, he will be perceived to be wealthy and he and his family will be targeted for extortion and kidnapping;

    ·Because he has been educated overseas and resided in a western country, he will be perceived as being supportive of the west and anti-Taliban;

    ·If he returns to Pakistan he will be required to seek employment in a government [facility] to complete the requirements for him to be able to practice as a [professional] in Pakistan and because he is working in a government institution he will therefore be perceived as being supportive of the government and anti-Taliban;

    ·If he returns to Pakistan he will need to work as a [professional] and will therefore be targeted by the Taliban and criminal elements as a professional person, perceived to be wealthy.

28. The applicant claims he is unable to relocate as the Taliban will locate him anywhere. As a Pashtun he will be easily identified wherever he chooses to live and the Taliban will be able to target his family.  He will be identified because of his name and residence which is contained on his identity cards and he will need to show these whenever he seeks employment.  His accent will identify him as being from the FATA.  The Taliban have people everywhere who will inform and he will be identified and he or his family will be harmed for the reasons he fears returning to Pakistan.  

29. The Tribunal accepts on the evidence before it that the applicant has completed a degree in [profession] and various qualifications in [courses].  The Tribunal accepts on the evidence before it that the applicant was educated outside of Pakistan ([Country 2] and Australia), holding overseas tertiary qualifications.  The Tribunal accepts on the evidence presented that the applicant has resided outside of Pakistan for a number of years, firstly in [Country 2] and then in Australia, a western country, for the past 6 years.  The Tribunal accepts on the evidence presented that the applicant completed a 12 month [training] at [a facility], Abbottabad, in [year]. The Tribunal also accepts the applicant is opposed to the Taliban’s ideology and its activities in Pakistan, particularly in wishing his [siblings] to be able to have an education. 

30. Country information, including that from DFAT, indicates that despite Operation Zarb-e-Azb in the FATA and KPK, the TTP still continues to operate in the region.[1]   The information indicates that the TTP finances its activities through extortion, smuggling, drugs trade and kidnapping.  The same report indicates that while the number of terrorist incidents and fatalities in FATA has decreased, the region recorded the highest overall number of fatalities in Pakistan.  While the situation has improved and the Pakistani Government has from the beginning of 2016 taken initiatives to restore and improve the daily life of those living in the FATA, [Agency 1] still recorded incidents of violence and terrorist attacks with the TTP changing tactics to target killings over suicide attacks.  The information indicates that following military operations in [Agency 1] in 2011, many were displaced and while there were some returns, the UN reported no more returns during 2016 while Dawn reported on a few returns for that same year. DFAT has reported that the security situation varies between Pakistan’s provinces and autonomous regions but that the level of violence is greater in areas such as Sindh, Balochistan, KPK and FATA and depends on the location of military operations.

    [1] EASO, Country of Origin Information Report: Pakistan – Security Situation, Country Overview (July 2016).

31. The Tribunal accepts the applicant’s evidence that his family, including his extended family, have hidden his existence since about 2003 when he left the family home to study, firstly to complete his secondary education, then to complete his tertiary studies in [course] in [Country 2] followed by his studies in Australia.  The Tribunal accepts that they did this to protect themselves and the applicant from the Taliban who controlled the FATA and KPK areas at that time and still maintain a presence despite efforts by the Pakistani Government. While the Tribunal acknowledges that the applicant has returned to visit his family for short periods while in Pakistan, he has done this secretly to avoid drawing attention to himself and his family.    

32. The Tribunal considers that should the applicant return to his home area, his presence will be noticed, particularly as he has been absent since 2003 and his family have actively tried to conceal his presence such that [another sibling] is considered to be the eldest [gender] child in the family.  While the Tribunal acknowledges that the applicant’s father is absent for lengthy periods from the family home, his presence has not been concealed and it is known within the village he is working abroad.  The applicant’s evidence is also that his father is devout and has a long beard to blend in to the village on his return from [Country 1]. DFAT reports that many Pakistanis have travelled overseas to seek employment and that remittances from these workers are an important source of income for many families in Pakistan.  The Tribunal notes the applicant’s evidence that the family owns land but does not farm it as they did in his grandparents’ time and that his father has paid for his academic studies in order for the applicant to have better opportunities.  The Tribunal accepts the applicant’s evidence that his father and family are not perceived to be wealthy because the applicant’s father works abroad.  The Tribunal considers that despite the applicant’s family not being perceived to be wealthy, the applicant’s sudden return to the village after a long absence, having received an overseas education, holding a [professional] degree and having studied and spent time in a western country would come to the attention of the local Taliban.    

1. Having regard to all of the evidence, and to relevant country information, the Tribunal finds that the applicant would be considered valuable to the local Taliban because of a perception that due to his overseas education, his qualifications as a [professional], and his time abroad, particularly the last 6 years in a western country, he would be wealthy. The Tribunal notes the country information referred to above that indicates the TTP in the area finance their activities through extortion and kidnapping and considers that they would view the applicant as a potential source of income and threat because he has been educated overseas, has overseas qualifications, including a [professional] degree and has completed his [training], as well as resided in a western country for a number of years.   The Tribunal differentiates the applicant’s return to that of his father’s return to the village in that his father has never concealed his existence, blends into the village through his devoutness and beard and it is known within the village they are not a wealthy family. The Tribunal considers the sudden arrival in the village of a son whose existence has been hidden since about 2003, would draw the attention of other villagers, with the information of his return and background eventually reaching the Taliban.  The Tribunal also considers that to the local Taliban because he has tertiary qualifications and having resided in a western country for a significant period, he would be imputed as having an anti-Taliban political opinion.  In this regard the Tribunal notes that DFAT and other country information indicates that there is still a Taliban presence in the FATA and KPK and in view of the on-going military activity by the Pakistan government to clear the area, the Tribunal considers that the Taliban would seek to remove those who are, or are perceived to be, in opposition to them. 

2. In considering whether the level of risk rises to the level of being a well-founded fear, the Tribunal considered the test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[2] The Court held that ‘well-founded fear’ involves both a subjective and objective element.  The Tribunal is satisfied, by reference to all the evidence, that the applicant holds a subjective fear of serious harm. 

   [2] (1989) 169 CLR 379 at 396.

3. In considering whether the fear is well founded, a fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[3] A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:

   … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[4]

   In the same case Dawson J stated:

   ... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[5]

   [3] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.

   [4] (1989) 169 CLR 379 at 389.

   [5]Chan v MIEA (1989) 169 CLR 379 at 397-398.

4. Having regard to the above test, and having regard to the evidence of the applicant and all of the relevant country information, the Tribunal finds based on the particular profile and background of the applicant, he faces a small but real chance of serious harm in the form of kidnapping, physical assault or murder by elements of the Taliban, now or in the reasonably foreseeable future, if he returns to home area in [Agency 1], FATA, Pakistan. 

5. Therefore the Tribunal accepts that there is a real chance that the applicant would face serious harm for reasons of his membership of a particular social group, that is a person educated overseas, a person who holds overseas gained [professional] qualifications or a person has lived in a western country for the past 6 years or any combination thereof, and his imputed political opinion as being in opposition to the Taliban.  It further finds the serious harm is of a kind suggested in the examples set out in s.91R of the Act and that the targeting of the applicant for such serious harm would be systematic and discriminatory.

   State Protection

6. The harm the applicant fears is not from the Pakistan authorities but from non-state actors, including the Taliban.  Having found that there is a Convention nexus to his fear of serious harm, the Tribunal must consider whether the Pakistani Government is able to provide adequate protection against that harm.

7. Although Pakistan’s laws and Constitution provide for state protection, DFAT assesses state protection in Pakistan is limited by resources shortages, personal means and in some cases political will. DFAT reports that although there are variations in the effectiveness of individual police forces in Pakistan, their capacity to maintain law and order is generally limited by a lack of resources; poor training; insufficient and outmoded equipment; and manipulation by superiors, political actors and the judiciary. Common perceptions of police corruption undermine public confidence in the country’s police forces.[6]

   [6] DFAT Country Report Pakistan 15 January 2016.

8. On the basis of this information, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities in the FATA does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

   Relocation

9. Having found that there is a real chance the applicant will face serious harm upon his return to [Agency 1], FATA, the Tribunal must also consider whether it is reasonable and effective for the applicant to relocate to some other place in Pakistan where there would not be an appreciable risk of the harm he faces in his home area. 

10. The UNHCR Internal Flight Guidelines  at paras 29 and 30 states:

    If the situation is such that the claimant will be unable to earn a living or to access
    accommodation, or where medical care cannot be provided or is clearly inadequate, the area
    may not be a reasonable alternative. It would be unreasonable, including from a human rights
    perspective, to expect a person to relocate to face economic destitution or existence below at
    least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of
    living standards or worsening of economic status may not be sufficient to reject a proposed
    area as unreasonable. Conditions in the area must be such that a relatively normal life can be
    led in the context of the country concerned. If, for instance, an individual would be without
    family links and unable to benefit from an informal social safety net, relocation may not be
    reasonable, unless the person would otherwise be able to sustain a relatively normal life at
    more than just a minimum subsistence level.
    30. If the person would be denied access to land, resources and protection in the proposed
    area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or
    cultural group, relocation there would not be reasonable. For example, in many parts of
    Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable
    access to land, resources and protection. In such situations, it would not be reasonable to
    expect someone who does not belong to the dominant group, to take up residence there. A
    person should also not be required to relocate to areas, such as the slums of an urban area where they would be required to live in conditions of severe hardship.

11. Australian jurisprudence, while not addressing this situation directly, states:

    [I]nternal relocation will not be a reasonable option …if the evidence indicates that there are other and different risks in the propounded place of internal relocation SZATV v MIAC 233 CLR 18 per Kirby at [80] – [81].

12. The issue of relocation was considered by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. In that case Gummow, Hayne and Crennan JJ held:

    It will be seen that the matter of “relocation” finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department…. His Lordship said:

    a.“The convention does not expressly address the situation in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country; rather than move to a place of relocation within his country where he could have no well-founded fear of persecution; where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.” 

    b.The references in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring, not to the phrase “the protection of that country” in the second limb of the decision, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedoms of its nationals.

13. Australian case law SZATVv MIAC (2007) 233 CLR 18 at [24] has endorsed the proposition of the UNHCR Handbook of 1992 at para 91 that where a person would not face the harm present in his home area by relocating to another area where that harm is not present should not be excluded from refugee status, if under all the circumstances it would not have been reasonable to expect him/her to do so. Their honours explained that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country.

14. It is well settled that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, and where it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him to seek refuge in another part of the country. ‘Reasonable’ will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person’s country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[7]

    [7] SZATV v MIAC [2007] HCA 40

15. At hearing the Tribunal discussed the issue of relocation with the applicant. The Tribunal noted that its assessment of the country information was that it may be safe, as well as reasonable, for the applicant to relocate to another part Pakistan, in particular to one of the large towns or cities such as Islamabad or Lahore. The Tribunal has disregarded Karachi as a possible place to which the applicant could safely relocate based on the DFAT reports that Karachi is less secure that other urban centres and that is has been unable to assess the sustainability of the downward trend in criminal and general violence since the commencement of Operation Zarb-e-Azb.  The Tribunal noted that there was freedom of movement in Pakistan, and that many people relocated within Pakistan for various reasons.

16. The Tribunal also discussed with the applicant DFAT advice that western influence remains pervasive in many parts of Pakistan, that many Pakistanis have relatives living in western countries and that those living abroad frequently return to Pakistan to visit relatives.  It assesses that individuals are not subject to discrimination or violence on the basis of having spent time in western countries.[8]  As discussed with the applicant, many Pakistanis travel overseas to be educated, particularly to the UK, USA and Australia who return and are not targeted for being educated overseas or in a western country.  Having regard to the DFAT advice the Tribunal does not accept that there is a real chance or real risk that the applicant will be persecuted as a member of the particular social group of ‘persons returning from Western countries’ or “persons educated overseas, including a western country” or “persons holding an overseas [professional] qualification” or for any combination of those groups or because of any perception that he holds liberal political or religious views, that he is pro-western or that he has received a western education because of the years he has spent in Australia and elsewhere if he returns to Pakistan now or in the reasonably foreseeable future.

    [8] DFAT Country Information Report - Pakistan, 15 January 2016, paragraph 3.62.

17. The applicant gave evidence that in 2009 he completed his 12 month [training] at [a facility], Abbottabad.  He told the Tribunal that his father told him that it was safer there for him rather than Peshawar.  As discussed with the applicant, he lived safely in Abbottabad for 12 months as an overseas educated Pashtun, working at a government [facility] and therefore could be perceived as supporting the government and anti-Taliban and as an overseas educated Pashtun who could be perceived as being a wealthy returnee.  The Tribunal discussed with him that during this time he was not targeted by the Taliban or criminal elements

18. The applicant also gave evidence that after his return to Pakistan in July 2010, he rented a small apartment in Islamabad while he undertook an English language course so he could complete his IELTS for his [temporary] visa application.  As discussed with the applicant, he lived in Islamabad for about 6 to 7 months as an overseas educated Pashtun who had completed a [course] overseas and who could be perceived as being a wealthy returnee and was not targeted by the Taliban or criminal elements. 

19. The applicant claimed that the Taliban have spies everywhere and he would be identified by his name, address and accent and it would be reported back to his home village where his family would be targeted.  However, the evidence from the applicant was that despite returning to Pakistan in 2009 when he worked and lived in Abbottabad for 12 months and for the 6 to 7 months when he studied and lived in Islamabad, he did not come to the attention of the Taliban or criminal elements and he and his family experienced no harm.

20. The applicant claims he would not be safe from the Taliban anywhere in Pakistan as the Taliban have a network throughout the country and would seek to harm him and would search for him throughout Pakistan. The Tribunal accepts that country information indicates that the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence, particularly outside of FATA, KPK and Balochistan.  

21. The applicant claims that he will be targeted for harm by the Taliban because he will seek to complete his [training] to register as a [professional] in Pakistan and then work as a [professional].  He also claims that because he will be required to work at a government [facility] to complete his [training], the Taliban will impute him as being supportive of the government and opposed to them.   The Tribunal notes that DFAT assess that there is moderate threat of violence for high profile professionals who are doctors, lawyers, teachers, political and religious leaders, particularly of the Shia faith in Karachi.   The Tribunal also notes that DFAT reports the security situation in Karachi remains volatile because of the reported presence of militant sleeper cells and the potential for backlash by those groups targeted in Ranger operations.  Country information indicates the targeting doctors by the Taliban particularly in Karachi and primarily for extortion and/or their Shia faith.[9]  The Tribunal notes that the country information referred to by the applicant’s representative is prior to 2014 and since then the Pakistani government has launched Operation Zar-e-Azb which DFAT reports has resulted in a significant decrease in criminal activity and sectarian and general violence through Pakistan, including Karachi.  However, as noted earlier the Tribunal has dismissed Karachi as a suitable place to which the applicant could relocate.

    [9] South Asia Terrorism Portal 2014, Doctors killed in Pakistan: 2001-2014, 13 April < Human Rights Watch 2013, Pakistan: Deter Escalating Attacks on Shia Muslims, 12 November <>

    The applicant is not a high profile professional, having never worked in Pakistan and is not a doctor, lawyer, teacher, political or religious leader.  The applicant is also not a member of the Shia faith.  The evidence from the applicant is that to qualify and practise as a [professional] in Pakistan he is required to complete his [training] at a government [facility].  While the applicant may choose on his return to Pakistan to complete the requirements to be registered as a [professional] and eventually practise as a [professional] in Pakistan, the Tribunal does not accept that this will increase his profile to that of a high profile professional now or in the reasonably foreseeable future. 

22. The Tribunal is satisfied on the country information that should the applicant decide to practise as a [professional] in Pakistan in the future, the chance or risk he will be harmed for working as a [professional] outside of the KPK, FATA and Karachi is remote.

23. The Tribunal notes that the country information indicates that the Taliban were most active in KPK and the FATA, that urban areas in other parts of Pakistan saw relatively few attacks, and that the attacks that did occur were targeted against military or other authorities or minorities.  The Tribunal is satisfied that the applicant would not be characterised in either of these categories.      

24. The Tribunal notes that the most recent DFAT Report indicates that the Taliban is a loose network of Sunni militant groups that have attacked targets throughout Pakistan. The Tribunal accepts that the country information suggests the Taliban is a network of militant organisations which did not have the level of cohesion and integration to target locally known persons of adverse interest like the applicant outside of their home regions, or that there was a Taliban wide ‘hit list’. The Tribunal does not accept that the applicant is of any interest to the Taliban or that they will invest resources into locating him through any means.

1. DFAT reports that Operation Zarb-e-Azb has substantially reduced the level of serious crime, including homicide, throughout Pakistan.  DFAT also reports that the Punjab remains relatively free of sectarian and generalised violence.  Many large urban centres such as Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment and access to services.

2. The Tribunal notes that there is a significant population of Pashtuns in Lahore and Islamabad/Rawalpindi and that state protection is more available in urban areas, with the exception of Karachi. The Tribunal also notes that the applicant lived safely in Abbottabad and Islamabad in 2009 and late 2010 at a time when violence by extremist organisations was highly prevalent.

3. The Tribunal has considered the applicant’s circumstances. It accepts the applicant faces a real chance of serious harm due to his overseas education, his qualifications as a [professional] and his time abroad, particularly the last 6 years in a western country, such that he would be perceived to be a wealthy returnee from a western country and imputed to be opposed to the Taliban in the applicant’s home area in [Agency 1], FATA, Pakistan.  However, the Tribunal does not accept that the real chance or real risk exists across Pakistan generally. Based on the evidence before it, the Tribunal does not accept that the applicant’s particular profile and background gives him such a distinction outside his home area that the Taliban would seek to harm him by pursing him in other locations within Pakistan.

4. The applicant has claimed that he would be targeted because of his actual and imputed political opinion against the Taliban.  He also claims that working in a government [facility] will cause him to be imputed as being against the Taliban.  The Tribunal does not accept that simply working for the government causes a person to be imputed as anti-Taliban.  The Tribunal considers that the majority of Pakistan’s population would not support the Taliban or their beliefs or activities.  The Tribunal considers country information indicates the majority in Pakistan is against the Taliban and their violent activities.  It is generally accepted that the present government of Pakistan opposes the Taliban and has mounted operations against their activities in the western regions of Pakistan. The Tribunal therefore considers that the actual and imputed political opinion against the Taliban is the dominant opinion in the broader population in Pakistan.

5. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm because of his actual and imputed anti-Taliban political opinion, either individually or cumulatively, in all of Pakistan.

6. The Tribunal has also considered the applicant’s Pashtun ethnicity in Pakistan, and his claim that he would be harmed because of this ethnic background which will also cause him to be easily identified. The applicant claims his appearance and accent identifies him as a Pashtun. The applicant claims that the Taliban spies will quickly identify him and report back to his home area of his presence and his family will be targeted. The Tribunal notes that there are sizeable populations of Pashtun in Pakistan outside of KPK and FATA, particularly in locations such as Karachi, Islamabad and Lahore. The Tribunal notes country information regarding Pashtuns in Lahore and that a large Pashtun population has moved from the FATA and KPK to Lahore. While Lahore is a predominately a Punjabi city, waves of migration from the FATA and KPK has led to the emergence of a large Pashtun community. DFAT has estimated the Pashtun population to be one million. Given the migration of people within Pakistan in recent years, the arrival of the applicant in Lahore as a Pashtun would not be a remarkable incident or attract attention.  The Tribunal does not, in the context of the circumstances reported in the relevant country information, accept the fact that the applicant would be a newcomer would lead to him being more identifiable than others, and therefore more at risk, in that community. 

7. The Tribunal accepts the DFAT reports that militant organisations do not have the level of cohesion and integration or the resources to locate persons and considers it speculative that the Taliban would be interested in him over and above other more local targets such as the military, authorities or minorities such that they would report back to the applicant’s home area of his presence. 

8. In locations in Pakistan apart from Karachi, reports of violence against Pashtuns are limited and isolated, and do not demonstrate that Pashtuns are being harmed.  The Tribunal finds that the reported violence that affects Pashtuns appears to be rare in light of the size of the population.  The Tribunal considers that country information does not demonstrate that the chance or risk of being harmed as a Pashtun in locations such as Islamabad, Rawalpindi or Lahore is any more than a remote chance, and not one that could be determined to be a real chance or real risk of occurring. The Tribunal therefore does not accept that the applicant as a Pashtun faces a real chance of serious harm or a real risk of significant harm because of his Pashtun ethnicity.

9. The applicant has claimed that as a Pashtun relocating within Pakistan, he will be identified because of his ethnicity and identifiable accent. The Tribunal has considered the applicant’s circumstances and as a new arrival as a Pashtun in Lahore, the Tribunal accepts the applicant may face some short-lived initial suspicion. However, the Tribunal does not accept that his ethnicity and identifiable features and accent are either uncommon or would lead to discrimination that could be described as serious or significant harm.  The Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm, because of his ethnicity, appearance and accent in Lahore.

10. The Tribunal does not accept that the applicant has a real chance of serious harm or a real risk of significant harm due to Taliban activity across Pakistan. The Tribunal does not consider that the applicant as a person, who has been educated overseas, has qualifications as a [professional] who may practise [in that field] in the future and his time abroad, particularly the last 6 years in a western country, and having an anti-Taliban opinion, would be of interest to the Taliban or any other insurgent group in other locations within Pakistan. The Tribunal does not accept that the Taliban would seek to harm the applicant in locations outside of his home area. The Tribunal considers that there are locations within Pakistan where the applicant, who has been educated overseas, has qualifications as a [professional] and may practise [in that field] in the future and his time abroad, particularly the last 6 years in a western country, and as someone who does not support the Taliban, individually and cumulatively, can relocate to an area where he does not face a real chance of serious harm, or a real risk of significant harm.

11. Having found the applicant does not have a well-founded fear of persecution for any of the claimed reasons the Tribunal has considered whether it would be reasonable for the applicant to relocate to another part of Pakistan, such as Lahore, Islamabad or Rawalpindi.

12. The Tribunal has considered whether there is any appreciable risk of harm to the applicant which would make it not reasonable for him to relocate to one of the identified areas/cities. 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. [10] The Tribunal has considered the level of generalised violence in Lahore, Islamabad and Rawalpindi.

    [10] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.

13. The Tribunal has taken into account reports of attacks by the Taliban and other militant groups in cities such as Lahore and Islamabad/Rawalpindi referred to in the DFAT and other reports. DFAT reports that the levels of general and sectarian violence in Pakistan have significantly decreased following Operation Zarb-e-Azb and the increased resources by the Pakistani government to combat terrorist operations throughout the country.

14. The Tribunal notes country information does indicate terror attacks have occurred in the major cities in Pakistan.  The Tribunal has considered the generalised violence in cities such as Lahore and Islamabad/Rawalpindi and it accepts that there is a level of generalised violence, though it is sporadic. The country information suggests that most attacks targeted police, anti-terrorist and army facilities or personnel. Although the Tribunal notes reports of bombs in market places.

15. The Tribunal has considered the applicant’s risk of harm in this generalised violence. While the Tribunal is concerned about these acts of violence, they are not common. DFAT reports that overall generalised and sectarian violence in the Punjab are lower relative to the rest of Pakistan.  The Tribunal finds the country information clearly reports sporadic generalised violence in Lahore. However the Tribunal considers that the risk of the applicant being harmed in this violence is one faced by the population generally, and not faced by the applicant personally. The Tribunal does not accept that the applicant has a real chance or real risk of harm for this reason.

16. The Tribunal does not accept on the available evidence that there are particular factors which will increase the risk of the applicant being harmed in the context of these sorts of terrorist attacks.  Given the level at which terrorist attacks occur and given that the Tribunal does not accept on the available evidence that there are particular factors which will increase the risk of the applicant being harmed in the context of these sorts of terrorist attacks, the Tribunal considers that the risk to them in the context of these sorts of terrorist attacks is remote.  The Tribunal does not accept on the evidence that the level of generalised violence in Lahore makes it unreasonable for the applicant to relocate to that city.

17. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan and that there is freedom of movement of Pakistani citizens throughout the country. DFAT also reports that many persons formerly displaced parts of KPK and FATA due to past conflict have since been resettled in KPK and FATA or successfully relocated to other parts of Pakistan, and identifies that options are available for most ethnic and religious groups to relocate to large, urban centres, that are home to mixed populations with access to services and employment opportunities[11].

    [11] Department of Foreign Affairs & Trade Country Information Report – Pakistan 15 January 2016 paras 5.15 to 5.21

18. Having determined that the applicant does not face a real chance of serious harm or a real risk of significant harm outside of his home region, the Tribunal has considered the reasonableness of relocation, in the sense of ‘practicable’, having regard to the particular circumstances of the applicant and the impact upon that person of relocation within his country of the relocation.

19. The Tribunal notes that it is not required to identify any particular location within Pakistan where the applicant could relocate. However given the applicant’s circumstances and background, the Tribunal considers the options of Lahore and Islamabad/Rawalpindi the most suitable.  It has been noted that DFAT states that internal relocation can be hampered by a lack of financial resources. However, the applicant is an educated man with English and Urdu as well as [language] and Pashtun. The Tribunal notes that DFAT specifically indicates that people with foreign language skills are more likely to find employment on relocating. The Tribunal finds the applicant has reasonable qualifications and work experience gained while in Australia. The Tribunal notes that there is a large Pashtun population residing in Lahore who are able to survive because they are in employment and accommodation in that city.  The Tribunal does not accept that the applicant would be unable to find employment in such an environment in light of his past studies and his work experience. 

20. Having regard to the applicant’s particular circumstances, it finds that he would be able to find work of some kind in Pakistan if he were to relocate to a large urban centre.  It finds the applicant has prior work experience in Australia; he has received a reasonable education at higher tertiary level and is familiar with relevant languages such as Urdu and English.  It finds he has experience in Australia in finding employment and accommodation. The Tribunal does not accept the country information before it suggests the applicant will be denied employment of some kind, or that he will not be able to secure some form of work in a reasonable period or that he will not be able to find some form of accommodation within a reasonable period. The Tribunal therefore does not accept that it is unreasonable for the applicant to relocate because of a lack of financial resources. The Tribunal also considered that the applicant may not have the benefit of familial support in their relocated area and this may make his life more difficult, but notes that information from sources including DFAT indicates that in the identified places there are Pashtun populations, and the Tribunal is satisfied the applicant has skills and attributes to gain employment. The Tribunal notes that the applicant lived in [Country 2] for a number of years and has lived in Australia for a considerable period without familial support. The Tribunal therefore considers that it would not be unreasonable for the applicant to relocate away from familial support in all of his circumstances.

21. Having regard to all of the applicant’s particular circumstances, the Tribunal does not accept that the applicant faces a real chance of harm while establishing himself and living in a new location on return to Pakistan, even if he may face some challenges. However, the Tribunal finds on the evidence before it that the applicant is an adaptable and capable young man who is able to meet the challenges he may face in settling into a new city in Pakistan. 

22. For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the applicant’s circumstances, for him to relocate to Lahore or Islamabad or Rawalpindi where, as the Tribunal has found there is, objectively, no appreciable risk of the occurrence of the persecution claimed.  The Tribunal has considered the totality of the applicant’s circumstances.  However, even taking into account the cumulative effect of these circumstances, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for one or more of the Convention reasons if he returns to Pakistan.

23. The Tribunal does not accept on the evidence that the applicant has have a well-founded fear of being persecuted for one or more of the Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.

    Complementary protection

24. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.

25. Whilst the Tribunal accepts that the applicant may face a real risk of significant harm if he is removed from Australia and returns to his home area of [Agency 1], FATA, for the reasons set out in detail above, the Tribunal has found that relocation to another part of Pakistan is both safe and reasonable in all the circumstances of the applicant.  The Tribunal has found that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm.  Subsection 36(2B)(a) therefore provides that in such circumstances it is taken that there is not a real risk that the applicant will suffer significant harm if he is removed to the relevant receiving country.

26. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal accepts that there is a level of generalised violence in Lahore and Islamabad and Rawalpindi although it is sporadic and not common. The Tribunal considers that the risk of the applicant being harmed in this violence is one faced by the population generally, and not faced by the applicant personally. The Tribunal does not accept that the applicant faces a real risk of harm for this reason.

27. The Tribunal therefore finds that there is not a real risk the applicant will suffer significant harm for any other reason as a necessary and foreseeable consequence of his removal from Australia to the receiving country of Pakistan.

    CONCLUSION

28. 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).

29. 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).

30. 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

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

    Amanda Goodier
    Member

    
    

    ANNEXURE A

    RELEVANT LAW

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

    Refugee criterion

33. 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).

34. 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.

1. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

   Complementary protection criterion

100. 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’).

101. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

102. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

103.   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.[12]

[12] DFAT Country Report Pakistan 15 January 2016, DFAT Thematic Information Report Shias in Pakistan 15 January 2016.

ANNEXURE B

COUNTRY INFORMATION

104.   In relation to the Tehrik-e-Taliban Pakistan (TTP), the TTP is the largest Taliban organisation in the FATA, with reported figures on the number of groups organised under the TTP banner ranging from 13 to 40.[13] The TTP is also very active in KPK and FATA.

[13] Bajoria, J 2011, ‘Pakistan’s New Generation of Terrorists’, Council on Foreign Relations, 9 December < Accessed 17 May 2012; for 40 groups, which may include groups allied but not under the TTP banner, see: Qazi, S H 2011, ‘Rebels of the frontier: origins, organisation, and recruitment of the Pakistani Taliban’, Small Wars and Insurgencies, Vol. 22 no.4, 574-602 pp.581, 597 no.29, and: Roggio, B 2012, ‘Al Qaeda brokers new anti-US Taliban alliance in Pakistan and Afghanistan’, The Long War Journal, 3 January < Accessed 17 May 2012

105.   On the question of state protection, the DFAT Country Information Report – Pakistan – 15 January 2016 states:

Pakistan’s Army and paramilitary forces regularly conduct counter-insurgency operations in the FATA and remote parts of Khyber Pakhtunkhwa to increase government control in these areas. According to International Crisis Group (ICG), 49,000 people were arrested on terrorism-related charges between the commencement of the National Action Plan (NAP) in December 2014 and May 2015. Despite the relatively high number of arrests, however, successful prosecutions of those responsible for politically motivated or sectarian violence are rare. This is because of the ineffectiveness of police investigations, as well as the debilitating effect of threats to judges and witnesses, who are not protected by witness protection programs.
…
5.7 Although there are variations in the effectiveness of individual police forces in Pakistan, their capacity to maintain law and order is generally limited by a lack of resources; poor training; insufficient and outmoded equipment; and manipulation by superiors, political actors and the judiciary. Common perceptions of police corruption undermine public confidence in the country’s police forces.

106.   The UK Home Office current Pakistan report states:

Are those at risk able to internally relocate within Pakistan?
1.2.4 Relocation to another area of Pakistan may be viable depending on the nature of the threat from non-state agents and individual circumstances of the person.

1.2.5 Pakistan’s total land area is 770,875 sq km with an estimated population of
196,174,380. The law provides for freedom of movement within the country, but due to violence in some areas, it is restricted in practice.[14]

[14]  The DFAT Country Information Report – Pakistan – 15 January 2016 states the following in relation to the TTP:

2.32 The most potent militant group in Pakistan remains the TTP – a loose network of Sunni militant groups which have splintered since the commencement of Operation Zarb-e-Azb. Although they are ideologically aligned, the TTP maintains an identity distinct from the Afghan Taliban, which is widely accepted to have an operational base in Quetta, the capital of Balochistan province.

2.33 The TTP has carried out a number of high profile attacks against government security forces, political rivals, civilian infrastructure, and non-Sunni minorities throughout Pakistan. This includes direct attacks using small arms, suicide bombings, car bombs and improvised explosive devices (IEDs), as well as complex attacks using a combination of these tactics. For example, the TTP has claimed responsibility for attacks against the Pakistan military’s General Headquarters in Rawalpindi in 2010; a naval station in Karachi in 2011; Karachi Airport in June 2014; a military-run public school in Peshawar in December 2014; and an Air Force base camp in Peshawar in September 2015. According to the South Asian Terrorism Portal (SATP), there were 3,682 fatalities from terrorist-related violence in 2015. This included 940 civilians; 339 security forces personnel; and 2,403 insurgents.

108.   The DFAT report of 15 January 2016 provides the following information in relation to the economic overview of Pakistan:

2.9 Low inflation and high remittances helped Pakistan’s economy grow 4.2 per cent in 2014-15, its highest growth rate since 2008-09. In 2014-15, the country’s exports stood at USD 25.2 billion and imports at USD 41.4 billion. Pakistan relies on imported oil for around one-third of its energy production, which is a key factor in Pakistan’s energy shortage and trade deficit.

2.10 Corruption in Pakistan is widespread. Transparency International’s (TI) 2014 Corruption Perception Index ranked Pakistan 126 out of 175 countries. Eighty two per cent of those surveyed for a 2013 TI report viewed Pakistan’s police force as the country’s most corrupt institution, followed by public officials (81 per cent) and political parties (76 per cent). By contrast, participants regarded religious institutions as the least corrupt (27 per cent).

2.11 The United Nations’ 2015 Human Development Index ranked Pakistan 157 out of 187 countries. The World Bank classifies Pakistan as a low-middle income country - GDP per capita was around USD 1,300 in 2013. The number of people living below the official rate of poverty fell from around 35 per cent in 2002 to 14 per cent in 2011.

2.12 The official unemployment rate in Pakistan is 6.0 per cent. Unofficial estimates of unemployment are as high as 15 per cent. Unemployment is higher in rural than urban areas, with official statistics indicating approximately eight per cent of people in rural areas were unemployed in 2013-14. Women in Pakistan also have significantly lower participation and higher unemployment rates than men.

2.13 According to Pakistan’s Ministry of Overseas Pakistanis and Human Resource Development, 2.76 million Pakistanis left Pakistan to seek employment abroad from 2008-13. Remittances from these workers are an important source of income for many families in Pakistan. According to the World Bank, remittances made up 6.9 per cent of Pakistan’s GDP in 2014.

2.14 Overall, DFAT assesses that the low level of development in Pakistan acts as a significant ‘push factor’ for external migration. Better economic opportunities in large urban centres also encourage internal urbanisation.

109.   The same report contains the following information on internal relocation and on the options for relocation:

5.15 Section 15 of the Constitution guarantees the right to freedom of movement in Pakistan. The country’s last census in 1998 underlined the high level of internal migration: almost three million internal migrants moved between provinces, and many more relocated within provinces. The majority of these migrants cited marriage and family reasons for relocating, while others moved because of business and employment opportunities. Almost 17 per cent of those who migrated to different provinces cited ‘other’ reasons for their decision to relocate.

5.16 Military operations have forced many families to relocate, particularly those in the FATA and parts of Khyber Pakhtunkhwa. Although some Temporary Displaced Persons (TDPs) have relocated temporarily to tented villages, many have resettled with migrant communities or relatives in large urban centres such as Peshawar, Rawalpindi and Karachi. As of September 2014, there were over 1.3 million UNHCR-registered TDPs in Pakistan due to internal conflict and natural disasters. According to the UN Office for the Coordination of Humanitarian Affairs, over 113,311 families returned to the FATA – including North and South Waziristan and Khyber Agencies – from March-September 2015. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015, with 3,041 families returning to Kurram and 710 families to Orakzai from October-November 2015.

….

5.18 Because of Pakistan’s size and diversity, there are viable relocation options for members of most ethnic and religious minorities: internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from non-state instigated discrimination or violence. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas.

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

5.20 The population of Islamabad grew from around 800,000 at the time of the 1998 census to almost two million in 2011. Founded in the 1960s, Islamabad has a relatively high population of internal migrants, many from conflict-affected areas in FATA, Khyber Pakhtunkhwa and Balochistan. There are numerous police checkpoints along highways leading into Islamabad, and at major intersections and prominent buildings within the capital. These provide a strong deterrent to militant groups planning attacks in the capital by increasing the risk of detection. Paramilitary Rangers also continue to patrol streets throughout Islamabad, having been deployed throughout the city in April 2014.

5.21 Transportation costs and the higher costs of living in larger cities can operate as a barrier to internal relocation, although they can be offset by higher wages typically received in these locations. However, there are a range of accommodation options in cities like Karachi, Lahore and Islamabad and no evidence to indicate any accommodation shortages.