1517356 (Refugee)

[2016] AATA 3683

1517356 (Refugee) [2016] AATA 3683 (8 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517356

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:David Corrigan

DATE:8 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2016 at 6:30pm

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] December 2012 and the delegate refused to grant the visa [in] January 2014.

3. On 20 May 2015, the Refugee Review Tribunal (differently constituted) affirmed the decision not to grant the visa.  [In] May 2015, the Federal Circuit Court set aside the decision and remitted the matter to the Tribunal for reconsideration according to law.

4. The applicant appeared before the Tribunal on 5 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

   RELEVANT LAW

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

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    State protection

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

    Relocation

17. 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. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Complementary protection criterion

18. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

    State protection

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

    Relocation

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

    Section 499 Ministerial Direction

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. I have before me material which includes:

    ·Application for protection visa with accompanying statutory declaration dated 4 December 2012;

    ·Copies of the applicant’s educational certificates, birth certificate, drivers licence and domicile certificate and character certificates;

    ·Interview with delegate, dated [in] September 2013;

    ·Agent’s written submission, dated 27 April 2015;

    ·Agent’s written submission, dated 11 May 2015;

    ·Hearing with first Tribunal.

25. The applicant’s claims can be summarised as follows.  He is a Pashtun Sunni who was born in [his home village], [District 1], Kurram Agency, Pakistan in [year]. He lived there until [year] when he attended a college in Peshawar until [year].  He then returned to [his home village].  He arrived in Australia by boat in August 2012.  He has parents and [siblings] still reside in [his home village].

26. In 2008, the Taliban came into [District 1] and threatened teachers and killed [teachers].  The Taliban put up threatening posters concerning English education.  Due to these threats, teachers returned to their homes and the applicant’s school shut down.  The applicant was forced to go to Peshawar to study.  After one year, the [administrator] allowed girls to study and he was threatened and then kidnapped by the Taliban.  In 2010, the Taliban put up threatening posters at the college. The applicant continued attending but he was forced to get private tuition because the college would not open with any frequency or predictability.

27. In 2010, the applicant went back to see his family.  When he went to go back to Peshawar he began walking with his [relative] and a few other people from his village to [another village]. They were walking at night to avoid being detected by the Taliban or Shia terrorist groups such as Hezbollah and Mehdi Militia.  They switched on a torch to search for water and were shot at, though he doesn’t know who did this.

28. Shia terrorist groups have placed land mines around his village to target Sunnis and more than [number] people have been killed including his [relative].  His [relative] has been injured by a landmine whilst [working].   Around March 2012, the Taliban approached his village elders looking for recruits but were rebuffed.  The applicant told the first Tribunal that he never personally had been approached by the Taliban as the villagers protected the community blocked access to the village to stop the Taliban.  On occasion, the applicant’s village is not accessible via road due to local militia and terrorist organisations. 

29. The applicant fears harm due to being a Sunni, his actual and imputed political opinion and membership of particular social groups consisting of “educated people”, “people who wish to pursue further education” and “failed asylum seekers returned to Pakistan from Western countries”.  He fears that the Taliban will find out from Pakistani authorities he has a connection to Australia.

    Country of reference

30. The applicant claims to be a Pakistani national.  Based on the copies of documentation set out above, I find that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims

31. The applicant has given consistent and credible evidence which accords with country information (referred to in the agent’s submissions) concerning the situation in the Kurram Agency and Peshawar in the period 2008-12 with the Taliban and Sunni-Shia relations.

32. I accept that in 2008, the Taliban came into [District 1] and threatened teachers and killed [teachers].  I accept that the Taliban put up threatening posters concerning English education.  I accept that due to these threats, teachers returned to their homes and the applicant’s school shut down.  I accept that the applicant was forced to go to Peshawar to study.  I accept that after one year, the [administrator] allowed girls to study and he was threatened and then kidnapped by the Taliban.  I accept that in 2010, the Taliban put up threatening posters at the college. I accept that the applicant continued attending but he was forced to get private tuition because the college would not open with any frequency or predictability.

33. I accept that in 2010, the applicant went back to see his family.  I accept that when he went to go back to Peshawar he began walking with his [relative] and a few other people from his village to [another village].  I accept that they were walking at night to avoid being detected by the Taliban or Shia terrorist groups such as Hezbollah and Mehdi Militia.  I accept that they switched on a torch to search for water and were shot at, though he doesn’t know who did this.

34. I accept that Shia terrorist groups placed land mines around his village to target Sunnis and more than [number] people have been killed including his [relative].  I accept that the applicant’s [relative] has been injured by a landmine whilst [working].   I accept that in around March 2012, the Taliban wanted a member of his family to join them but he was not at home and refused and so he fled to Australia in June 2012.  I accept that the villagers blocked access to the village to stop the Taliban. I accept that in this period on occasion, the applicant’s village was not accessible via road due to local militant organisations. 

35. As put to the applicant at the hearing, recent and authoritative information from the Australian Department of Foreign Affairs and Trade (DFAT) indicates a very substantial improvement in security in the applicant’s home area of upper Kurram Agency.  DFAT have reported:

    4.32 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. FRC data indicates there were 14 security incidents in Kurram Agency from January-June 2015, mostly in lower Kurram. Most of these were IED and ambush attacks against security forces around Shabak and Thal, although there was also a failed suicide IED attack on a football match in Alizai on 6 May 2015. On 13 December 2015, however, an IED attack at a market in Parachinar killed 25 people and injured 62 others. Militant groups LeJ and Ansarul Mujahideen have both claimed responsibility for the attack. A number of media reports suggest the attack was motivated by the militants’ desire to ‘punish’ Pakistani Shias for participating in Syria’s civil war. Others have characterised the attack as an attempt to contest government control following the Pakistani military’s 12 December 2015 announcement that Operation Zarb-e-Azb has almost eliminated the insurgent presence in the Shawal Valley. Given these conflicting positions, DFAT is unable to attribute responsibility for the attack or confirm the motivations of the perpetrators.

    …

    4.33… While the 2013 ‘peace accord’ between Shia Turis and Sunni Bangash remains in place, Turi Shias are reportedly concerned about the movement of Haqqani Network militants into Kurram Agency because of their ability to create rifts between Bangash Sunnis and Turi Shias. 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.

    4.34 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.

    4.35 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.

    4.36 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.[1]

    [1] Australian Department of Foreign Affairs and Trade, DFAT Thematic Report Shias in Pakistan, 15 January 2016.

1. Writing in December 2014, Arif Rafiq argued that the 2011 peace agreement between local Shia and Sunni tribes was successful, noting that elders from opposing tribes ‘cooperate with one another’, and that, although the Agency remains ‘dangerous’, the situation had by then ‘stabilised’.[2] This assessment is supported by a March 2015 Express Tribune report, which states that ‘there is cautious movement of both Shia and Sunni tribes in each other’s territory’.[3]

   [2] Rafiq, A 2014, Sunni Deobandi-Shi’I Sectarian Violence in Pakistan: Explaining the Resurgence since 2007, December, p.64 <

   [3] Firdous, I 2015, ‘In search for peace: The long road from Kurram to Australia’, The Express Tribune, 31 March <

2. The applicant told the Tribunal that his parents and [siblings] still reside in [his home village] but they do not work or attend schools and rely off the savings of the father who once had a large business and their farm where they grow [various crops].  Asked whether anything had happened since the hearing of the first Tribunal, he said that his family would not tell him if anything happened as they did not want him to get sad as he was in Australia by himself. 

3. The applicant told the Tribunal that he wanted to study [a subject] and would have done so in [District 1], but the college was now closed.  I have conducted searches of the internet to see if a college is presently operating in the city but have been unable to identify either way that this is or is not the case.  The improved security situation in Kurram Agency and the lack of problems that his family have experienced in recent times are strong indicators that suggest that the applicant’s prospects of facing serious harm and significant harm in his home area at the hands of the Taliban and Shia groups is now remote.  However, I note that upper Kurram is 80% Shia and there is still some level of militant activity in this area as evidence by the December 2015 [attack]. I also note that DFAT have reported the return of Sunnis to lower Kurram but there is no available evidence before me that Sunnis have returned to upper Kurram.  Given that the scale and length of the violence in upper Kurram (as referred to in the country information submitted by the agents), I consider that a cautious approach should be adopted in assessing the risk of harm that the applicant faces upon return as a result of his Sunni religion and due to his village’s refusal to provide him and others to the Taliban.

4. Given this history and that the applicant’s village has in the past come under attack from Shia and Sunni militants, I find that there is a real chance that the applicant, now and in the reasonably foreseeable future, for reasons of his Sunni religion and imputed political opinion will face serious harm in his home area of upper Kurram at the hands of both Shia militias and Sunni extremists such as the Taliban.  However, I find that this is localised to his home area.  Given this past history and the country information, I find that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm in his home area on this basis.  However, I also find that this is localised to his home area.

   State protection

5. DFAT have commented that state protection in Pakistan is limited by resources, shortages, personal means and some cases, political will.  They have commented that their capacity to maintain law and order is also generally limited by poor training and insufficient and outmoded equipment.[4] 

   [4] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

6. Given the overall weight of the country information and his individual circumstances, I find that the applicant would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

7. Given the overall weight of the country information and his individual circumstances, I find that the applicant would not obtain, from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm.

   Failed asylum seekers returned to Pakistan from Western countries

8. DFAT have stated:

   3.62 Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship) and western-branded chains operate throughout Pakistan. Both Urdu and English are recognised as official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West.[5]

   [5] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

9. The European Asylum Support Office has stated that there would be no punishment for those who returned to Pakistan after a failed asylum claim, there being no law forbidding them from applying for refugee status elsewhere.[6]

   [6] European Asylum Support Office, EASO Country of Origin Information Report – Pakistan Country Overview, August 2015.

10. At the hearing, the applicant said the Taliban would still be a risk to his life; however the country information does not support that they or anyone else would target the applicant because he has spent time in a western country or because he has applied for asylum.

11. Considering the country information as a whole and the applicant’s individual circumstances, I find that throughout Pakistan, he does not face a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of militant and sectarian groups, or the state on account of his membership of a particular social group consisting of “failed asylum seekers returned to Pakistan from Western countries”.   

12. Considering the country information as a whole and the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm on this basis.

    Relocation

13. Though I have accepted that the applicant faces a real chance or real risk of serious harm and significant harm, I find that this is localised to his home area and he is not in this situation in Punjab (including Lahore) and Islamabad/Rawalpindi.

14. I have had regards to the country information referred to by the applicant’s agents concerning the security situation in Pakistan and its various provinces and the ability of militant groups such as the Taliban to operate throughout Pakistan.  However, I have given greater weight to the reports of DFAT as they are authoritative, more recent and they have been charged with the provision of advice to the Australian government.  DFAT have commented that the security situation varies between Pakistan’s provinces and that Punjab remains relatively free of sectarian and generalised violence.  They have stated that there was a 75% reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014-September 2015 and that militants particularly the Taliban are divided and disrupted and no longer have access to safe havens in Khyber and North Waziristan Agencies.  DFAT have commented that there are viable relocation options for members of most ethnic and religious minorities and that internal relocation offers a degree of anonymity and opportunity to seek refuge from non-state discrimination or violence.  They state that the security situation in Lahore remains better than many other places in Pakistan with lower levels of generalised and sectarian violence and the Pashtun community in Lahore has told them that its members feel safe and do not feel threatened by sectarian violence.  Approximately one million Pashtuns have migrated to Lahore since the 1980s and there are large numbers of Pashtuns in Islamabad which has a relatively high level of internal migrants with many from Federally Administered Tribal Areas (FATA).[7]

    [7] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

15. I have 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 reports and the agent’s submissions.  However, these need to be seen in the context of Lahore and Islamabad both having very large populations (10 million and 2 million respectively[8]) and that many of the attacks have been targeted at non-Sunnis.  The applicant has not been in Pakistan since 2012 and his evidence indicates that his parents and [siblings] have not been targeted or harmed by any militant group since he left.  Furthermore the applicant has no particular adverse profile with the Taliban or any other militant group and there is no basis to believe that they or any militant group would seek to target him in particular in these locations.  I have had regard to the submitted reports of persons from Kurram Agency being targeted for ransom in Islamabad by militant groups.  However, these are now several years old and there is no further evidence of this occurring in recent years[9] and the cited 2011 Dawn article indicates it was particularly members of the Shia Turi tribe who had been targeted.  I have therefore given them only limited weight.

    [8] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

    [9] For example, the DFAT and EASO reports do not refer to this.

16. I have had regard to the submitted reports from the applicant’s agent concerning the targeting of teachers and students in Pakistan; however I note these reports refer to Taliban attacks in FATA and Khyber Pakhtunkkwa and not in Punjab (including Lahore) and Islamabad/Rawalpindi.   The Tribunal has no evidence before it of this occurring in Punjab (including Lahore) and Islamabad/Rawalpindi.[10]  Nor does it have any evidence before it that “educated persons” are targeted or harmed by the Taliban or any other militant group or anyone else in Punjab (including Lahore) and Islamabad/Rawalpindi.

    [10] For example, the DFAT and EASO reports and the country information in the agent’s submissions do not refer to this.

17. DFAT have commented that Pashtuns are well represented at all levels of society in Pakistan and that they have historically dominated employment in the transport sector and are well represented in security forces.  A large number of Pashtuns work in merchant trades though they also occupy less desirable jobs.  Pashtun migrants comprise approximately 70% of local business owners in Lahore.  DFAT have commented that there are anecdotal reports of some Pashtun migrants experiencing difficulties obtaining identity cards and that the broader Pashtun community in Lahore has reported harassment from local police authorities at checkpoints, in the Pashtun-dominated Shalom Market and in Pashtun settlements.  The harassment has increased since the implementation of the National Action Plan to counter terrorism in December 2014.  There is also ethnic Punjabi resentment about the pecuniary success of Pashtun migrants in Lahore and the fact that Punjab is hosting an unprecedented number of temporarily displaced persons.  DFAT state they are not aware of any of these problems occurring in Islamabad or Rawalpindi.  I do not however, consider any of these problems constitute either serious harm or significant harm or that they provide the basis for finding that his chance or risk of serious harm or significant harm is more than remote.

18. The applicant is a Sunni which constitute 75% of Pakistan’s population[11] and the country information before the Tribunal does not indicate that Sunnis face either a real chance of persecution or a real risk of significant harm in Punjab (including Lahore) or Islamabad/Rawalpindi. 

    [11] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

19. In making these findings, I have taken into account the applicant’s individual circumstances including that he would be residing in Punjab and Islamabad/Rawalpindi without the support of his family.  I have considered the country information submitted by his agents including that Anatol Lieven has stated that Pakistanis need family or tribal links to protect them and that Pakistan is a violent society in which none of the institutions of the state can be relied upon and that close relations with kinfolk are essential.  However the most recent and authoritative country information from DFAT does not indicate that his lack of family and tribal support in Lahore or Islamabad/Rawalpindi would place him at any greater risk or mean that the chance or risk of him being seriously harmed or significantly harmed would be more than remote.  Furthermore, I do not accept that he faces a real chance of serious harm or a real risk of significant harm from any actor in these in these locations that would necessitate such protection from his family and tribe.

20. Considering the country information as a whole and the applicant’s individual circumstances, even when considered cumulatively, I find that in Punjab (including Lahore) and Islamabad/Rawalpindi, he does not face a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of militant and sectarian Sunni and Shia groups (including the Taliban), Punjabis or the state or anyone else on account of his membership of particular group consisting of “educated persons” or “people pursuing further education in Pakistan”, his Sunni religion, or his imputed or actual political opinion or his Pashtun ethnicity.     

21. Considering the country information as a whole and the applicant’s individual circumstances, even when considered cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm in Punjab (including Lahore) and Islamabad/Rawalpindi on these bases.

22. In considering whether it would be reasonable for the applicant to relocate to Lahore and Islamabad/Rawalpindi, I have taken into account the elements mentioned in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan (14 May 2012) referred to by the agent.  I have taken into account that the applicant has no relatives or friends or tribe members in the areas and that DFAT had noted that the loss of family connections can make relocation difficult.[12]  However he is a [age] year old man with no family of his own to support and he has not claimed that he has any health problems.  He has a Year [level] Pakistani education and has been able to undertake work in Australia ([specified work]) and has shown that he has been able to live away from his family in Australia for an extended period of time.  DFAT have commented that there is a high level of internal migration in Pakistan and that large urban centres such as Lahore and Islamabad offer better opportunities for employment, access to services and state protection than rural or smaller urban areas.  The applicant told the Tribunal that people from the Tribal areas have been removed from security positions and there was no work for them.  However, both cities have large migrant Pashtun populations which he could assist with his integration and the country information indicates that Pashtuns doing very well in business as evidenced by the fact that 70% of businesses in Lahore are owned by Pashtun migrants.  DFAT have referred to higher costs of living in larger cities but they comment that this can be offset by higher wages typically received in these locations.  The applicant said there were people in Islamabad/Rawalpindi, 6-12 months ago who had their unplanned houses destroyed and who were told they should go back to their regions.  Whilst I am willing to accept that this occurred, DFAT have commented that there is a range of accommodation options in cities like Lahore and Islamabad and no evidence to indicate any accommodation shortages.[13] Available country information including that from DFAT does not indicate that the applicant would be denied access to government services in these locations and DFAT have commented that health care is generally free and accessible to all Pakistanis.[14]  DFAT do not indicate that he would be unable to access accommodation, employment or government services due to his lack of family or tribe in these areas.  Nor does the country information before the Tribunal indicate that there are landmines or unexploded ordinances in these locations or that there is any level of displacement.   I have also taken into account that the applicant speaks, reads and writes English and Urdu which are official languages in Pakistan[15] and which would assist him to integrate and find work.  I find that the applicant would be able to obtain work, education and accommodation in these centres.

    [12] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 14 April 2015.

    [13] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

    [14] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

    [15] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

23. The country information suggests that there is ethnic Punjabi resentment concerning Pashtun migration and that there are reports of some Pashtun migrants in Lahore experiencing difficulties obtaining identity cards though these are anecdotal.  There is also evidence of a level of harassment by the police against Pashtuns in Lahore.[16]  However, I do not consider that these reports make it unreasonable for the applicant as a Pashtun from a tribal area to relocate to this city and I note that DFAT state they are not aware of any reports of any of this occurring in Islamabad/Rawalpindi.

    [16] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

24. The UNHCR Guidelines refer to the need to consider the criminality rate and resultant insecurity, particularly in urban areas.  However, I note that DFAT have reported that Pakistan’s homicide rate is 7.7 per 100,000 people and that Operation Zarb-eAzb has substantially reduced the level of serious crime, including homicide, throughout Pakistan.  I do not consider the level of crime in these locations makes it unreasonable for the applicant to relocate to these locations or that the chance or risk of him being seriously or significantly harmed due to criminal activity is more than remote.  I have also taken into account the reports of sectarian and militant violence that occurs in Punjab and Islamabad/Rawalpindi, but I do not consider these are of a level that would make relocation unreasonable for the applicant.

25. Considering all of the individual circumstances and the country information, I find that it would be reasonable for the applicant to relocate outside his home area to Lahore and Islamabad/Rawalpindi to avoid the localised threat of serious harm that he faces.  His fear of persecution, even when considered on a cumulative basis, is not well founded.

1. Considering the independent country information and the applicant’s individual circumstances, I find that it would be reasonable for the applicant to relocate outside his home area to Lahore and Islamabad/Rawalpindi where even when considered on a cumulative basis, there would not be a real risk that he will suffer significant harm and that s.36(2B)(a) applies in his case.

   Conclusions

2. 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).

3. 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).

4. 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

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

   David Corrigan
   Member