1600491 (Refugee)

[2016] AATA 4833

1600491 (Refugee) [2016] AATA 4833 (16 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600491

COUNTRY OF REFERENCE:                 Pakistan

MEMBER:Nicole Burns

DATE:16 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 16 December 2016 at 5:01pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Religion – Shia – Ethnicity – Hazara – Threats by extremist groups – Ethno-sectarian tensions – Restricted to Shia enclave – No effective State protection – Relocation not practical – Limited opportunities – Mental health issues

LEGISLATION
Migration Act 1958, ss 36(2)(a)-(c), 499

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR
Randhawa v MILGEA (1994) 52 FCR 437

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 2013 and the delegate refused to grant the visa [in] January 2016.

3. The applicant appeared before the Tribunal on 29 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

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.

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. 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’).

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant faces a well-founded fear of persecution in Pakistan from extremist Sunni groups based on his Shia religion and Hazara ethnicity or whether complementary protection provisions otherwise apply.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The applicant first came to Australia in December 2012 on a temporary [visa] arriving on his own Pakistani passport.  The delegate had no issues with the applicant’s claimed nationality and on this basis, as well as noting a copy of his Pakistani passport on the Departmental file, the Tribunal is satisfied that he is a national of Pakistan and has assessed his protection claims accordingly. 

12. The Tribunal accepts the applicant’s claim as to his ethnicity, religion, work history, family background and personal history.  That is it accepts that he is a Hazara Shia from Quetta, Balochistan Province in Pakistan.   Hazaras are a homogeneous ethnic group, the majority of who are Shia Muslims[1].  His passport and national identity card on the Departmental file record that he originates from Quetta.  The Tribunal accepts that his parents have died and his [siblings] remain living in Quetta.  It accepts that he married his Australian wife (originally a Hazara Shia from Afghanistan) in Quetta in January 2011 however their relationship broke down a month after he arrived in Australia in late 2012 and they have been separated ever since.  It accepts that he operated a small restaurant on [a]r Road in Quetta from 1996 before he came to Australia.

    [1] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016 at 1.1.2

13. The applicant claims the reasons he left Pakistan in late 2012 were twofold: that is because he feared for his life given the spike in targeted killings of Hazara Shias by extremists in Balochistan that year and to join his wife in Australia.  The Tribunal is of the view the applicant has exaggerated the extent of his subjective fear of persecution at the time, given his delay in applying for a protection visa by almost a year after he claimed he separated from his wife.  At hearing the applicant explained the delay was because he was hopeful that he and his wife would reconcile.

14. The Tribunal is also concerned that the applicant has exaggerated his claims to have been directly threatened by Sunnis in the past in Quetta and his direct threats by extremists groups such as the Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba (SSP).  That is because whilst in his written statement that accompanied his visa application he mentioned the poor security situation for Hazara Shias in general he failed to mention that he was specifically targeted or threatened.  He described difficulties he faced when buying supplies for his restaurant business in terms of being ‘abused’ and pushed down on the ground by anti-Shia people (and having to pay more than Sunnis and not being allowed to pick supplies) however he did not state that he was directly threatened with death by Sunni store owners whilst buying supplies if he continued to shop there, which is what he told the Tribunal in his oral evidence. Specifically at hearing he said he was threatened by Sunni store owners about eight times and as a result he had to close his restaurant, in around October 2012.  The Tribunal also notes the applicant’s evidence that he had resided in Quetta all his life and operated a restaurant there since 1996, which required him to attend Sunni markets almost daily yet he did not indicated that he had been threatened or targeted before these alleged incidents.

15. Despite these concerns, the Tribunal does accept the applicant is a Hazara Shia from Quetta and that he operated a restaurant there for around [number] years prior to coming to Australia.  It accepts based on independent country information (discussed further below) that he comes from an area that has historically suffered from ethno-sectarian tensions and violence, including targeted attacks against Hazara Shias. In this context it is plausible that the applicant has experienced harassment and discrimination and possibly threats as a Hazara Shia whilst undertaking business as claimed from Sunni store holders, for example.  The Tribunal accepts that Sunni store holders may have told the applicant not to shop at their market, for example, but considers their primary motivation was to avoid becoming targets of sectarian violence themselves more so than wanting to seriously harm the applicant as claimed.

16. Although only vaguely mentioned at the Departmental stage, the Tribunal is also willing to accept the applicant’s claims that over the years he has witnessed violence towards Hazara Shias in Quetta, including a suicide bomb attack that killed scores of people at a Shia Ashura procession in March 2004 and at a Youm ul Quds rally in around September/October 2010, where Lashkar-e-Jhangvi (LeJ) claimed responsibility for both attacks.  The applicant’s description of the attacks accords broadly with independent country information[2] about the attacks and the Tribunal accepts his claims to have assisted the wounded by driving them to hospital, for example. 

    [2] See BBC New, ‘Carnage in Pakistan Shia attack’, 2 March 2004, and The Express Tribune, ‘Suicide attack in Quetta kills 55’, 3 September 2010,

17. The applicant claims to fear being killed as a Hazara Shia, easily identifiable as such, on return to Quetta by Sunni extremists such as the LeJ.  He stated at hearing that the government is not able to provide protection and his family members who remain in Quetta have told him the situation has not improved, particularly for people who must travel to the main bazaar, which the applicant would have to in order to buy supplies if he re-established a restaurant there.  He said his family members have not been harmed but they are essentially confined to their neighbourhood which is largely comprised of Hazara Shias. 

18. The Tribunal accepts that the applicant is a Hazara Shia from Quetta in the Balochistan province of Pakistan, which is his home region.  The Tribunal also accepts that the applicant’s [siblings] continue to reside in Quetta, where they are essentially confined to their neighbourhood which is primarily comprised of Hazara Shias. The Tribunal accepts that this is due to ongoing violence directed at the Hazara community, noting country information that indicates that the sustained targeting of Hazaras by militant groups has led to them being increasingly concentrated in two suburbs, Hazara Town and Mariabad.  According to reports, both are protected by high walls and security checkpoints staffed by federal paramilitary troops.[3]

    [3] Butt, C 2014, ‘Losing ground - 30,000 Hazaras fled Balochistan in five years’, The Express Tribune, 12 April < Abbas, M 2015, ‘The Malalas of Quetta’, The Express Tribune, 12 July Hanif, M 2014, ‘Hazaras – Fault in their Faces’, Dawn, 24 October <

19. Taking into account the above findings, the Tribunal has considered independent country information about the situation for Hazara Shias in Quetta to determine if the applicant faces a real chance of persecution for a Convention reason on return there in the foreseeable future.

20. The Tribunal has had regard to information from DFAT indicating that levels of sectarian violence have decreased throughout Pakistan since 2014 following military operations against terrorist and militant groups.[4] DFAT in its January 2016 thematic report on Shias in Pakistan indicate that there has been a decline in sectarian attacks in Balochistan in 2015, due to the successful targeting of militant leaders, including LeJ leaders. DFAT notes however, that despite a decline in the number of sectarian attacks, militants target Hazaras to a greater extent than other Shias in Balochistan due to their distinct physical features and Hazara Shias remain segregated and are a key target of militant groups.  This analysis led DFAT to assess that a moderate level of general violence and a moderate level of sectarian violence exists in Balochistan. DFAT reports that there were ten sectarian attacks in Balochistan in 2015 resulting in 29 deaths (seven attacks specifically targeted Hazaras, resulting in 16 fatalities, while two attacks targeted Shias in Quetta, resulting in 13 deaths).[5]   

    [4] DFAT Thematic Report Shias in Pakistan, 15 January 2016 at 4.1.

    [5] Ibid at 4.23 – 4.25

21. Information from other sources supports the view that, while there has been a decrease in violence including target killings and terrorist attacks, Balochistan and Quetta in particular continue to face security issues and Hazara Shias continue to be targeted by militants. For example, it is noted in the Pakistan Institute for Peace Studies’ 2015 Annual Security Report  that in 2014 and 2015, Balochistan had the highest number of terrorist attacks for any one region of Pakistan (although the number of those attacks decreased from 2014 to 2015). In particular, the report refers to 12 sectarian attacks against the Shia community (mainly Hazaras) – two more than DFAT’s reported ten - and 11 of which occurred in Quetta.[6] All of the sectarian attacks were reportedly perpetrated by LeJ.[7] The European Asylum Support Office (EASO) notes that as Hazaras are the only community that is visibly distinguishable and almost exclusively Shia, they have borne the brunt of sectarian violence in Pakistan in recent years, with a big rise in attacks in 2013. EASO further cites a UNHCR document stating that more than 400 Hazaras have been killed by extremists since the beginning of 2013.[8]

    [6] Pakistan Institute for Peace Studies 2015 Pakistan Security Report, s.4.2.

    [7] Pakistan Institute for Peace Studies 2015 Pakistan Security Report, s.4.2.3.

    [8] EASO Country of Origin Information Report Pakistan Country Overview (August 2015) at s.3.4.6.

22. Other sources refer to a number of reported attacks and killings of Hazaras in Quetta in 2015.[9] Apart from LeJ, groups such as Jaish-ul-Islam have claimed responsibility for several 2015 attacks on Hazaras.[10] Also in 2015, students from Balochistan University with some links to the SSP undertook random assassinations of Hazaras on the streets of Quetta. It has been reported that members of the group were caught and arrested in August 2015.[11]

    [9] Raza, S 2015, ‘Killings in Quetta’, The Friday Times, 21 August,

23. Reports regarding the situation in 2016 indicate that, while the situation fluctuates, Quetta continues to be among Balochistan’s most violent districts.[12] The targeting of Hazaras in Quetta appears to be continuing in 2016, albeit with less reported incidents – there has been one report of two Hazara men killed in an alleged targeted attack by gunmen on motorbikes on 1 August 2016, for which a Pakistani Taliban splinter group, Jamaat-ul-Ahrar, took responsibility[13] and the killing of four Hazara women on a bus travelling to Hazara Town by unidentified assailants in early October 2016.[14] Various sources indicated that the women were shot because of their ethnicity.[15]

    [12] Centre for Research and Security Studies Security Report: January-March 2016; Centre for Research and Security Studies Security Report: April –June 2016.

    [13] South Asian Terrorism Portal Balochistan Timeline- 2016 Dawn ‘Four Hazara women killed as gunmen open fire on Quetta bus’, 5 October 2016, Pak Tribune ‘Four Hazara Shia women killed Quetta’, 5 October 2016

24. Furthermore, the first quarter of 2016 saw a slight upsurge in violence, with the Balochistan region recording the second highest number of casualties from violence across Pakistan in that period (181 deaths and 79 injuries), although not all of these were from sectarian attacks.[16]

    [16] Center for Research and Security Studies, "CRSS Quarterly Security Report - Q1, 2016", 2 May 2016, p.1-2, 5.

25. According to the most recent United States Department of State report, Hazaras continue to face discrimination and threats of violence in Quetta, as follows,

    Members of the Hazara ethnic minority, who are Shi’a, continued to face discrimination and threats of violence in Quetta, Balochistan. According to press reports and other sources, they were unable to move freely outside of Quetta’s two Hazara-populated enclaves. Consumer goods in those enclaves were available only at inflated prices, and Hazaras reported an inability to find employment or pursue higher education. They also alleged government agencies discriminated against Hazaras in issuing identification cards and passports. To avoid sparking violent incidents, authorities confined Shi’a religious processions to the Hazara enclaves. Anti-Shi’a graffiti was common in Quetta. According to multiple media reports, assailants killed at least 16 persons in attacks against Hazara Shi’as during the year. Media reported that on July 6, gunmen killed two Hazaras and a police officer in front of a passport office in Quetta; on July 17, a suicide bomber attempting to enter a Hazara neighbourhood in Quetta blew himself up, killing two; and on July 28, gunmen on a motorcycle killed two Hazaras in Quetta.[17]

    [17] US Department of State, Pakistan - Country Reports on Human Rights Practices 2015, 13 April 2016, section 6.

26. In a recent country information and policy note on Hazaras in Pakistan the UK Home office stated that:

    The greatest risk for Hazaras in Pakistan is sectarian violence and targeting by militants, predominantly the Lashkar-e-Jhangvi (LeJ), although the intensity and frequency may vary from region to region. The majority of attacks have occurred in Balochistan. Up to 27 November 2015, approximately 1,400 Hazaras have been killed and about 3,500 injured in Pakistan in at least 189 attacks by sectarian militants since 1999. Sources indicated between16 and 34 Hazaras were killed in 2015. In 2016, 2 apparent sectarian attacks in Quetta, in August and October, killed 6 Hazaras.[18]

    [18] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016 at 2.2.3

27. With respect to recent sectarian attacks in Quetta, the UK Home Office referred to DFAT’s January 2016 assessment in Balochistan that ‘despite a decline despite a decline in the number of sectarian attacks, Hazara Shias remain segregated and are a key target of militant groups.’  They also stated as follows,

    ...In a timeline of incidents and statements involving the LeJ in 2016, as of 25 August, the SATP did not refer to any attacks by the LeJ against Hazaras, citing only the deaths of LeJ members killed during encounters with the security forces. Whilst the same source recorded that 23 sectarian attacks had occurred across the country in 2016 (up to 18 September), killing 67 people, only 2 of those deaths were reported to be Hazaras. Reporting on the deaths of the 2 Hazaras, Dawn cited it as an apparent sectarian attack in Quetta, which occurred on 1 August 2016, after the men, travelling in a rickshaw, were shot dead by gunmen riding a motorcycle.  Jamaat-ul-Ahrar (JuA), the breakaway faction of the Tehreek-e-Taliban Pakistan (TTP) reportedly claimed responsibility for the killing.  According to the SATP 1 sectarian attacks against a mosque had occurred in 2016 (up to 25 September 2016)[19].

    [19] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016 at 6.1.12

1. In that same report the UK Home Office also reported on the 4 October 2016 killing of four Hazara Shia women on a bus as referenced earlier.

2. Given this analysis the UK Home Office stated in that report that whilst Hazaras have been targeted by militants, the number of sectarian attacks has been decreasing in recent years and the number of casualties compared with the size of the Hazara community, does not suggest that there is a general risk.[20]  The Tribunal agrees that the country information does not necessarily indicate that all Hazara Shias are at risk of serious harm (or significant harm) in Quetta.  Nonetheless the Tribunal has considered the applicant’s particular circumstances and for the reasons that follow is satisfied that he does face a risk of serious harm on return to Quetta as a Hazara Shia and business owner.

   [20] Ibid at 2.2.4

3. In the applicant’s case, as discussed, the Tribunal has accepted that he is a Hazara Shia who operated a restaurant business in [a] road in Quetta for many years and in doing so was required to travel outside the predominantly Hazara enclaves regularly to buy supplies. Although the Tribunal does not accept that the applicant was directly threatened by Sunni extremists groups such as the LeJ in the past, the Tribunal accepts that during these excursions he was often harassed and threatened by Sunni suppliers in an attempt to deter him – a Hazara Shia - from their area.  The Tribunal accepts that on return to Quetta the applicant is likely to resume similar work and would therefore be required to travel regularly outside the relatively secure Hazara enclaves in Quetta to source supplies, for example.  In doing so, the Tribunal is of the view that the applicant’s risk as a Hazara Shia (and easily identifiable as such) would be elevated.  Combined with the country information above which clearly indicates that despite a decline in sectarian attacks in Balochistan, targeted attacks continue to occur and, as noted by DFAT, Hazaras remain segregated and remain a key target of militant groups, the Tribunal is satisfied that there is a real chance that the applicant would suffer serious harm in Quetta for reasons of his Hazara ethnicity and Shia religion.

4. Given this finding the Tribunal has gone on to consider if state protection is available for the applicant in Quetta.  At the Tribunal hearing the applicant stated that the government does not protect Hazara Shias.  In his written statement provided to the Tribunal the applicant stated that he is unable to get protection from the Pakistani authorities because they do not have the power to protect him; they would withhold protection from him because he is Hazara and Shia; and Sunni extremists have links to the Pakistani security organisations.  This is evident, he claimed, by the fact that over the past 10 years or so thousands of Hazaras have been murdered and not a single person has been punished).  In his written submission to the Tribunal the representative submitted that country information indicates that Hazara Shias are being targeted and denied effective protection from the agents of persecution throughout Pakistan. 

5. Country information indicates a general willingness by the Pakistani authorities to protect Shias, for example during Moharram (a one month mourning period) law enforcement authorities provide security for participants and the police are known to provide escorts to Hazara groups who wish to travel to and from their workplaces in Quetta.  As well, and more broadly, the Pakistani authorities continue to implement counter terrorism strategies across the country to protect civilians[21].  

   [21] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016 at 2.3.1

6. This assessment by the UK Home Office was echoed in DFAT’s 2014 report that during Muharram ‘...provincial authorities and the Ministry of Interior are known to provide security for participants in Ashura processions.’[22]

   [22] DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March 2014, paragraph 5.4.    

7. However, both DFAT and the UK Home Office (among others) also assess that due to capacity constraints and other factors sometimes the authorities’ ability to protect Hazara Shias, for example, is limited.  DFAT has stated that although the authorities are generally willing to protect Shia communities and instigate various security measures, capacity constraints limit the governments’ abilities to protect the community[23] and the effectiveness of prosecutions.[24] The UK Home office also notes that “capacity constraints and a lack of resources may hamper the state’s ability to protect Hazaras.”[25]  Similarly, the US Commission on International Religious Freedom assesses that despite government efforts and positive rulings by the Supreme Court, the government failed to provide adequate protection to targeted groups or to prosecute perpetrators or those calling for violence.[26]The US Department of State noted that in its 2015 report on Human Rights Practices that:

   Police often failed to protect members of religious minorities – including Christians, Ahmadiyya Muslims, Shi’a Muslims, and Hindus – from attacks. There were improvements, however, in police professionalism and instances of local authorities protecting minorities from discrimination and communal violence.’[27]

   [23] Ibid, 5.1-5.2.

   [24] Ibid, 4.8.

   [25] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016

   [26] United States Commission on International Religious Freedom (USCIRF), USCIRF Annual Report 2015 - Pakistan, 30 April 2015, p.2.

   [27] US Department of State, Country Reports on Human Rights Practices for 2015, Pakistan, section 1d and 1e 13 April 2016, >

   This country information indicates that the government has made some efforts to protect Shia Muslims and civilians in Quetta, including Hazaras, and have clamped down on some militant groups activities such as the LeJ.  However it also indicates that there are capacity constraints and other factors which hamper their ability to protect Hazara Shias from such militant groups, who continue to declare their anti-Shia and anti-Hazara agenda, and carry out violent attacks.  Given these considerations, the Tribunal is not satisfied that the level of protection available to the applicant from the Pakistani authorities in Quetta and Balochistan more broadly meets 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. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his ethnicity and religion if he returns to his home in Quetta or elsewhere in Balochistan, now or in the reasonably foreseeable future.

8. Having accepted that the applicant has a well-founded fear of persecution in Quetta, Balochistan, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.    

9. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.

10. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.  The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[28] 

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

11. In his oral evidence to the Tribunal the applicant said it is not safe for him to relocate to another area to avoid the harm he fears from extremist groups such as the LeJ in Quetta for a number of reasons.  This includes because Sunni extremists are everywhere in Pakistan; that there are only a small population of Hazaras in Quetta and a smaller population in Karachi who have been targeted; that there are no Hazaras who live elsewhere; Hazaras are easily identifiable in all parts of Pakistan because of the way they look; and it is dangerous for Hazaras to travel between cities.

12. In his written statement to the Tribunal the applicant argued that as Hazaras do not receive protection from the Pakistani authorities they must rely on other members of the Hazara community yet most Hazaras live in Quetta, with a smaller number residing in Karachi.  However Hazaras in both of those areas are targeted by Sunni extremists.  He stated that if there was a safe area to relocate to, he and his family would have done so a long time ago.

13. In his written submission to the Tribunal the representative argues that there is no safe place for Hazara Shias to relocate to, away from Quetta, including large urban centres such as Lahore and Islamabad, arguing among other things that the Punjab is the home of the LeJ who operate with impunity.  He also submitted that whilst there is limited information about targeted attacks against Hazaras in places such as Lahore or Islamabad, this is due to the fact that there are very few Hazaras who reside there.   

14. The Tribunal accepts that the applicant is identifiable as a Hazara Shia from his physical appearance and as such his religion and ethnicity is immediately apparent.

15. Although accurate numbers are difficult to locate, the Tribunal does not accept the applicant’s contention that there are no Hazaras living outside Quetta and Karachi in Pakistan.  Country information indicates that after sectarian killings in Quetta, many families migrated to different parts of the country, especially Karachi[29].  Nonetheless the Tribunal notes that there is no specific information about the size of the Hazara Shia communities in Lahore or Rawalpindi or Islamabad, and they are described by DFAT as “small”. The DFAT report indicates that whilst there are significant numbers of Shias in the autonomous region of Gilgit-Baltistan, Peshawar, Kohat, Hangu and Dera Ismail Kahn in Khyber Pathunkhwa, but does not specify the size of the Hazara Shia community in those places. 

    [29] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016 at 5.2.2

16. The Tribunal notes further that much of the country information about the viability of relocation addresses the situation of Shias generally. Hazara Shias make up only one per cent of the population of Pakistan, whereas Shias make up 20 per cent.[30] As previously stated, unlike Shias from other ethnic groups, Hazara Shias are also readily identifiable because of their distinctive facial features.

    [30] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, at 2.9, 3.5; DFAT, Thematic Report Shias in Pakistan, 15 January 2016, at  2.4.

17. Despite continuing attacks against Shias throughout Pakistan, the Tribunal does not accept that the independent evidence supports a conclusion that there is a real chance that the applicant would suffer serious harm if he relocated to these parts of Pakistan, or even some other parts of Pakistan as a Hazara Shia.[31] However, as stated above the Tribunal must also consider whether it is reasonable for the applicant to relocate to another part of Pakistan.

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

18. In his written submission to the Tribunal the representative argues that there are a number of factors in the applicant’s case in addition to being a Hazara Shia that would make it unreasonable for him to relocate, including his poor mental state and absence of any familial or support networks outside Quetta.  The applicant also argued that it is unreasonable for him to relocate to another area in Pakistan to avoid the harm he fears as a Hazara Shia in Quetta given he has lived all his life prior to coming to Australia in Quetta; has no family and does not know anyone outside Quetta; and because he is traumatised by the threats he has received and by the large numbers of Hazaras in Pakistan who have been killed as well as those he has seen and the injured he has helped in various attacks, as discussed.  Given his trauma and fears he would have great difficulty establishing himself in another part of the country without family and community support, including being able to gain employment. 

19. At hearing the applicant said he has seen a psychologist once a week for the previous nine months to help him manage symptoms of depression and his nightmares related to trauma he has witnessed in Quetta.  He used to take some medication to help him sleep but has stopped recently because he is not working and cannot afford them.  The Tribunal had some concerns with the timing of the applicant’s alleged mental health problems given he started seeing a psychologist in April 2016, a few months after the delegate made the decision to refuse to grant him a protection visa and because the applicant did not mention any mental health concerns to the delegate. Nonetheless, having accepted the applicant is a Hazara Shia from Quetta who has witnessed sectarian violence there over the years, included targeted killing of some of his friends, the Tribunal finds it plausible that the applicant has developed symptoms of depression and anxiety, even if he did not seek help until more recently. 

20. Medical evidence before the Tribunal indicates that the applicant has been receiving treatment for post-traumatic stress disorder (PTSD) and clinical depression since April 2016 with a clinical psychologist through counselling and medication.  In a letter to the Tribunal dated [in] November 2016 the applicant’s treating psychologist stated, among other things, that whilst some progress had been made to alleviate his symptoms, the prospect of returning to Pakistan has re-triggered the applicant’s trauma based symptoms.

21. The Tribunal accepts the applicant has ongoing mental health problems that will impact on his ability to relocate, including his ability to find employment and housing. Whilst he has had employment experience operating a small restaurant in Quetta, he has had no other work experience in Pakistan and limited work experience in Australia, primarily due to his mental health issues.  The Tribunal considers therefore that his transferable skills are limited. Combined with his mental health problems, which his psychologist described as ongoing, the Tribunal considers it would be very difficult for the applicant to secure work and re-establish his life outside Quetta where he has no family or social supports. Also where, apart from Karachi, there are very few other Hazaras. 

22. The Tribunal also notes (and accepts) the applicant’s claims that he has witnessed many people killed and injured in suicide attacks in the past in Quetta, and some of his close friends have been killed in targeted attacks, which has resulted in a considerable degree of trauma and fear, and possibly contributed to the applicant’s poor mental health. 

23. For these reasons, when combined, the Tribunal does not consider it would be reasonable to expect the applicant to relocate himself to another part of Pakistan where he has very limited family or social supports, and ongoing mental health problems, to escape the harm he fears as a Hazara Shia – and easily identifiable as such throughout Pakistan – in Quetta and Balochistan.

24. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan in the reasonably foreseeable future, for the Convention reason of his Hazara ethnicity and Shia religion. For these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

25. 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

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

    Nicole Burns
    Member