1608734 (Refugee)

1608734 (Refugee) [2019] AATA 2312 (9 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608734
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Tania Flood
DATE:9 May 2019
PLACE OF DECISION:  Sydney
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 09 May 2019 at 2:44pm
CATCHWORD
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – race – Pashtun Turi – political opinion – anti-Taliban – Sunni extremists – community volunteer – educated – profession – real chance of harm extends to entire country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 10 September 2015. The visa was not granted because the delegate did not accept the applicant’s claims of past harm or that he has a profile such that he will be persecuted by Sunni Muslim extremists on account of his religion.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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 relevant country information assessments 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
The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Pakistan for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively 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.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Summary of claims
In his application form for a Protection visa the applicant provides the following:
He was born in [Village 1], Parachinar, Fata Kurram Agency, Pakistan. He is a Shia Muslim, and part of the Turi Bangash tribe. His parents, siblings, and relatives all live in Pakistan. He speaks, reads and writes Pashto, English and Urdu. He attended University in Pakistan where he completed a degree [in] 2014. He was employed as a [Occupation 1] for a private business in Pakistan from March 2014 to February 2015. He arrived in Australia [in] June 2015, on a [temporary] visa.
In his statement attached to his application for a protection visa, the applicant made the following claims:
He is a Shia Muslim and a member of the Turi-Bangash tribe. His ancestors converted from Sunni to Shia. Due to the influence of Turi-Bangash, a majority of Sunni-Bangash left Kurram Agency. The Sunni’s, particularly Sunni-Bangash continue to consider Turi-Bangash their enemies and infidels and target them.
His father [holds an important role] and involved in [Organisation 1]. His father and uncle established [an institution] in their village. His uncle is [Occupation 2] in Parachinar in Kurram Agency. The applicant looked after the activities of the agency in his uncle’s absence.
The applicant claims that there were multiple attacks on his family members in 2010-2011.
·[In] May 2010, the [institution] and the applicant’s home were attacked by Sunni extremists. His cousin was injured.
·[In] October 2010, his [sibling] was injured in an attack by Sunni extremists when [going] to school. [The sibling was injured].
·[In] January 2011, his [siblings] were injured and hospitalised after an attack by Sunni extremists, on their way to Peshawar.
·[In] June 2011, the applicant was returning to University from Parachinar when Sunni extremists tried to abduct him. Fortunately there was a police patrol and the attackers left.
·[In] June 2011, Sunni extremists planted a bomb at their [institution], leading to his cousin being injured.
The applicant is well educated and will be expected to take charge of the [institution] and be involved in [certain] activities in future, taking over the roles of his father and uncle. He fears he will be targeted by Sunni Islamic extremists and because of his activities with his uncle in his [organisation].
The applicant fears being targeted and killed on account of his ethnicity, religious belief, his opinion against Sunni extremists, his association with Imamia Student Organisation, his involvement with his uncle’s [activities], his family’s activities [in] the area. He also fears he will be harmed due to his father’s profile [and] involvement in [Organisation 1]. Sunni extremists consider him to be a person who would follow his father’s role as member of [Organisation 1].
The applicant also claims that he would not be able to find employment, as employers will not hire a Shia person out of fear of being targeted by Islamic terrorists for hiring a Shia person.
He cannot move to other parts of Pakistan as Sunni extremists have networks throughout Pakistan. He fears he will be easily identified as Turi-Bangash due to his accent and his national identity card will identify him as a person born in Parachinar.
He claims the police cannot protect him because the Sunni Islamic terrorists have connections with the authorities.
The applicant submitted a further statutory declaration, dated 27 January 2016. He repeats the key claims made in his protection visa application. He submits that he cannot return to Pakistan due to his religion. He is a well-educated Shia Muslim strongly associated with ISO.
He also provides the following additional information:
·In 2007, his father and other leaders from the region condemned the Taliban and other extremist militant groups for their ‘unholy war’ against the inhabitants of Parachinar. The applicant repeats his PV claims, listing a series of attacks involving his [siblings], and cousins in 2010 and 2011. On 13 October 2011, a bomb exploded in Parachinar, leaving more than 30 people dead and 70 injured.
·The applicant’s father raised his voice against the atrocities. The applicant claims that his father’s actions saved the region from militants, who were badly defeated and forced to leave the region. This made the prominent [officials], including his father, targets of extremists.
·The applicant was part of the Imamia student organisation (ISO) at [University]. The organisation consists of Shia students, who get together to practice religious and spiritual activities. The applicant claims that he became a target of Sunni radical students due to his involvement with ISO. On one occasion, the applicant was on his way to participate in a prayer session when he was approached by aggressive Sunni students who claimed they wanted to prosecute him.
·The applicant claims that he is well known in the region due to his position in ISO and to Sunni families who migrated to Azad Jammu and Kashmir Muzaffarabad from Parachinar Kurram agency.
·He was employed as a [Occupation 1] for a small private company, and often had to work onsite. He felt insecure because the people he was surveying were mostly Sunni and he felt he was being followed every day. He decided to leave his job. He will have difficulties finding another job because there is a quota system in Pakistan, which limits the applicant to only Parachinar vacancies.
·He is well educated and easily recognisable as a Shia Muslim. It is the agenda of the Taliban and other extremists to kill well educated Shia Muslims.
·He came to Australia on a [temporary] visa, believing his life was in danger. The applicant restates his claims that he cannot relocate to any other part of Pakistan.
The applicant also made a number of submissions to support the claims made in his statutory declaration. These include:
·Three medical certificates from [Parachinar]. The first certificate is dated [in] January 2015. This states the applicant’s cousin, [Mr A], suffered a fire arm injury [in] May 2010. The second certificate states that [Mr A] sustained a ‘fire injury’ [in] January 2011. The third certificate states that the applicant’s other cousin [sustained] a major injury [in] June 2011.
·A clinical record, dated [in] October 2010, from [a specialist] at a hospital in Parachinar. This provides detail of the injuries sustained by his [sibling].
·A reference letter, dated [August] 2015, by [a named person], from the Parachinar Kurram Agency. This letter provides details about terrorist attacks in the Kurram Agency tribal area in 2007. As a result of the attacks, there was a shortage of rations and medicine, and people were kidnapped and killed. It states that the applicant belongs to this tribal area and follows Fiqa-e-Jafferia.
·A reference letter, dated [January] 2016, by [a named person], confirming that the applicant’s uncle had been a member of [an organisation] of Pakistan since [2002].
·An ‘Ownership Certificate’ dated [in] October 2015, certifying that the applicant’s uncle is the registered owner of [an institution] Kurram Agency.
·Two letters from the Imamia Students Organisation (ISO). The first letter is dated [January[ 2015, from the President of the ISO. This states that the applicant was a member of Imamia Students Organisation (ISO) Pakistan [from] 2009 to 2013 during his time at University. The second letter is dated [June] 2015, and states that the applicant was a member of the ISO from 2007 to 2009.
·A ‘domicile certificate’ from the Office of the Political Agent Kurram Agency dated [in] October 2002. It states that the applicant belongs to the recognised tribe of Bangash, sub section Turi Khol, and that his father is a permanent resident of [Village 1] Kurram Agency.
On 24 April 2019, the applicant’s representative provided a submission to the Tribunal, claiming that the applicant would be subjected to serious harm amounting to persecution because of his:
·Pashtun Turi ethnicity (race)
·Shia Muslim religion
·Active and imputed anti-Taliban political opinion
The submission references a vast amount of country information in respect of the security situation in Parachinar in Kurum Agency; the situation for religious minorities in Pakistan including reported attacks against Shia Muslims; the presence and influence of Islamic Terrorists and the Taliban in Pakistan and the security situation in general in Pakistan. Based on this information it is submitted:
-    The Taliban and other extremist Sunni groups consider Turi-Bangesh Shia as non-Muslims. They routinely attack Shia mosques and other places of worship.
-    The Turi-Bangesh tribe vehemently opposed Al Qaeda and the Taliban and have fought against them. Members have been targeted for this.
-    There is no effective rule of law in Parachinar in Kurram Agency. Sectarian violence and militant attacks continue in Kurram Agency.
-    Members of the Shia religious minority continue to face persecution and targeted killings of Shia’s continue.
-    Educated Shia’s and particularly people involved in Shia activities are specifically targeted.
-    Non-Sunni Islamic believers face harm at the hands of hard line Sunni Muslims.
-    The authorities are either unwilling or unable to stop the killings of Shia’s. The Taliban and ISIS enjoy significant support from the Pakistani authorities despite the change of government. Islamic terrorists are supported passively and actively by the Pakistani government.
-    Sunni Taliban adherents have significant influence especially in the government’s security and armed forces and consider Shia’s as apostates.
-    Islamic fundamentalists check identity cards to identify Shia’s and kill them. Even if Shia’s move to other parts of Pakistan they will be identified and seriously harmed.
-    Reports of criminal activity have increased and Pakistan continues to face serious internal security challenges. The Islamic fundamentalist network remains resilient and Taliban linked terrorism refuses to die down. IS poses a major threat and Pakistan’s capital has been declared as “extremely dangerous”.
-    There is a growing intolerance in Pakistan of religious minorities, particularly Shia’s. DFAT reports increasing conservatism and religiosity across the country.
-    Police often fail to protect members of religious minorities and their capacity is limited by a lack of resources, poor training, insufficient and outmoded equipment and competing pressures from superiors, political actors and the judiciary.   High levels of police corruption are perceived.
-    The number of blasphemy allegations made against Shi’ites has increased exponentially in the period from 2012 to 2015.
Furthermore, the submission claims that the applicant would not be able to relocate to a larger city in Pakistan as he will face difficulties with reintegration, and may be perceived as a wealthy Turi-Bangash returnee from a western country which would further increase the risk of kidnapping. Threats to the applicant are exacerbated by the fact that he can be easily identified as a Shia Muslim in other regions of Pakistan.
It is submitted that the applicant is a religious person who has played an active role in religious activities while living in Australia. He would continue this observance if he returns to Pakistan. This also poses a real risk to him being able to relocate.
The risk of harm is also further exacerbated because the applicant belongs to the Turi Tribe. Turi-Bangash accents are easy to distinguish and Shia’s are often identifiable by common Shia names. Ethnic and Tribal names can reveal a person’s tribal or sectarian affiliation as can their address if they are from a predominantly Shia area. The applicants home address would become known when he would be required to present his computerised national identity card at military check points in order to freely travel in Pakistan.
Attached to the submission are the following documents:
·A letter dated [April] 2019, from [the] CEO of [of an organisation]. This confirms that the applicant has been volunteering for various events in Australia since July 2017.
·A newsletter dated [in] August 2017, by the Australian Red Cross, showing appreciation for the applicant’s blood donation.
·A family registration certificate issued by the Government of Pakistan, certifying the applicant’s family composition.
·A family registration certificate issued by the Government of Pakistan. This certifies the members of the applicant’s [uncle’s] family, composed of his wife and [children].
The applicant also submitted the following documents, in a separate email dated 24 April 2019:
·A letter dated 9 April 2019, from [the] President of [Organisation 2]. This confirms that the applicant has been an active member of the [Organisation 2] since 2015 and regularly attends Shia religious events and processions held by the Organisation.
·A psychologist report, dated 23 April 2019, from the applicant’s social [worker]. This states that the applicant had attended mental health counselling since [March] 2019 to address his severe depression, stress, and anxiety, as a result of the rejection of his protection visa application and his fear of returning to Pakistan. The report repeats the claims made by the applicant, that he fears being threatened and killed because he is a well-educated Shia Muslim.
·An affidavit verified on 16 April 2018, stating that the applicant’s father [is] the owner of [an institution].
·An affidavit by [a named person] (undated), a local elder. This states that he has known the applicant since childhood and that he belongs to a respectable and honourable family in the Bangash tribe of [Village 1]. He confirms that the applicant’s father has played a key [role], and his uncle has played a key role in the development of the local [institution].
·Four certificates showing that the applicant had completed secondary education and his University studies.
·Resubmission of the domicile certificate, previously submitted to the Department on 27 January 2016.
·Nine photographs. Two of these photos show the injuries sustained by the applicant’s cousin and [sibling]. Seven of these photos are taken from the [Organisation 2 social media] page, and show the applicant participating in various events run by the Association.
Evidence before the Tribunal

The applicant appeared before the Tribunal on 1 may 2019 to give evidence and present arguments in support of his claims. A summary of the oral evidence provided by the applicant to the Tribunal is set out below:
·He is from Parachinar in Kurram Agency. He undertook his university studies in [City 1] in Azad Jammu and Kashmir from August 2009 to the end of 2013. He also worked in Rawalpindi from January 2014 to June 2015.
·His parents [and siblings] live in Parachinar. He also has a [sibling] living in [another country] since 2016. His family have a [business]. His [sibling] works in [a specific field] and the others help out [in the business].
·He is the only child in the family to obtain a University degree.
·While working as a [Occupation 1] he was required to travel within the country conducting surveys. On four or five occasions he felt he was being followed by persons covering their faces. Based on their dress he concluded they were from Parachinar. He was also frequently asked by community members in the areas where he travelled where he is from. He was afraid he would be kidnapped and so he left the job to prepare his documents for travelling to Australia.
·He is a religious person. In Pakistan he observed his prayers and attended Shia gatherings. Because Shia wear black clothes to religious ceremonies they are easily identified and he was sworn at and insulted. Once in [City 1] he was punched and sworn at and called an infidel.
·During his college years he was an active member of the Shia student group - Imamia Students Organisation (ISO). He continued to be involved with IO – the non-student wing, when he began working.
·In Australia he attends [Organisation 2] and helps to organise events during the Shia calendar year. He also attends [a] Shia centre for prayers on Friday as well as mosques in [two suburbs].
·He attended a protest in 2017 in response to explosions which occurred in Pakistan. He also attended a protest [during] EID.
·His ID card shows his address as Parachinar and his Pashto accent is different to other Pashto speakers. For this reason he is identifiable as a Shia by persons demanding to check his identity.
·His family are not presently experiencing any harm but their lives are confined to their local area. He cannot return there because his area is surrounded by Sunni extremist enclaves and he cannot pass through those areas to his home.
·While there has been a lull in attacks in Parachinar the history of the area shows that violence can easily erupt at any time. He and his family are easy targets for extremists because his father is [an official] and his uncle is an educated person who runs a [institution] which they frown upon. The [institution] has previously come under attack by Sunni extremists. It is still operational [but] at times they receive complaints about [a certain] aspect of the [institution]. They are called infidels.
·His uncle is a [Occupation 2] in Parachinar. Sometimes his uncle is called upon to investigate [breaches] and when he was in college he would accompany his uncle from time to time. His uncle encouraged him to get involved in [activities] and due to his influence he [undertook a certain role] as part of his involvement with ISO. He continues to personally [undertake a certain activity] through the [charity] in Australia and he also does volunteer work for [an organisation] and [other] [activities].
·Various members of his family have been attacked in the past and he narrowly avoided being kidnapped in 2011. He returned to Parachinar only once after that and only because he travelled in a convoy. Despite this they encountered problems and delays along the way.
·If he returns to Pakistan he cannot work in his field of expertise because he is required to travel and it would be insecure to do so because he can easily be identified as a Turi Shia.
FINDINGS AND REASONS
Nationality
The applicant provided a copy of his passport to the Tribunal which verifies his claimed identity, place and country of birth. In the absence of any information to the contrary the Tribunal accepts the applicant is a citizen of Pakistan and that Pakistan is the receiving country for the purposes of the Act.
Findings of fact
The Tribunal found the applicant to be a credible witness who did not attempt to embellish his evidence. His written evidence was largely consistent with his oral evidence to the Tribunal and his experiences and evidence generally accord with independent country information.
The Tribunal is satisfied on his evidence and documents provided, that the applicant is a Turi Shia from Parachinar, located in Kurram Agency in the former federally administered tribal area (FATA). The Tribunal is satisfied he lived in [City 1] for approximately four years while completing his University degree and that in those years he was involved with the ISO. The Tribunal is satisfied that he was insulted, called an infidel and beaten on one occasion due to his Shia religion. The Tribunal is also satisfied that the applicant lived in Rawalpindi for about one and a half years while working as a [Occupation 1] prior to coming to Australia in June 2015. The Tribunal is satisfied the applicant’s position required travel and that he believed he was being followed in the course of his work causing him to leave his employment due to fears for his safety.
Further, the Tribunal is satisfied that the applicant’s father is a village [official] who has taken a stance against Sunni extremists operating in the local area and that his uncle is a [Occupation 2] in Parachinar. The Tribunal accepts the applicant was influenced by his uncle and accompanied him on trips around his local area. The Tribunal is satisfied that his uncle and father established [an institution] in Parachinar which is still operational and has been the subject of attacks by extremists in the past.
The Tribunal is satisfied that the applicant and his family have been the subject of attacks by Sunni extremists in the past. Specifically, the Tribunal accepts that [in] May 2010, the [institution] and the applicant’s home were attacked and his cousin was injured; [in] October 2010, his [sibling] was injured in an attack by Sunni extremists when [he/she] was going to school and [was injured]; [in] January 2011, his [siblings] were injured and hospitalised after an attack by Sunni extremists, on their way to Peshawar; [in] June 2011, the applicant was returning to University from Parachinar when Sunni extremists tried to abduct him and [in] June 2011, Sunni extremists planted a bomb at their [institution], leading to his cousin being injured.
The Tribunal is satisfied that the applicant is a religious person who outwardly practiced his faith in Pakistan and similarly observes religious prayers and ceremonies in Australia. The Tribunal is also satisfied the applicant is actively involved with [Organisation 2] in Australia and that he participates in community activities in his local area and is a blood donor with the Red Cross. There is nothing before the Tribunal to indicate that the applicant has engaged in these activities for the sole purpose of strengthening his claims for protection.
Is there is a real chance the applicant will suffer serious harm on return to Pakistan?
The Tribunal accepts that the Upper Kurram has experienced significant violence over the years, particularly between April 2007 and February 2012 due to a series of significant and violent incidents between Shia, Sunni and the Taliban and associated extremist groups.[1] Militant groups such as the TTP, Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba (SSP) have been engaged in the conflict.[2] Between April 2007 and early 2011, around 2000 to 3000 people were killed and over 3500 wounded[3] and much of Kurram’s health, education and agriculture infrastructure was severely damaged.[4] The road between Parachinar and the rest of Pakistan was effectively closed from 2007 to 2011 and there are numerous reports of attacks on conveys of trucks and buses.[5] In July 2011, the Pakistan Army launched an offensive to take control of the road, causing the displacement of thousands of Kurram residents. In October 2011, Shia and Sunni elders in Parachinar negotiated a peace deal, but during 2012, there was a major attack on a Shia mosque and a suicide bomb in a market in front of a Shia mosque which killed at least 36.[6] Security forces subsequently shot dead a number of Shia residents of Parachinar leaving a total death toll of 43. The leader of a breakaway Taliban faction reportedly stated that “we have targeted the Shia community of Parachinar because they were involved in activities against us”. The market attack is thought to have been retaliation by the Haqqani Network to the Turi’s continuing refusal to allow it access to Afghanistan through Upper Kurram.[7]
[1] Chandran, S. 2008, Sectarian Violence in Pakistan’s Kurram Agency, Pakistan Security Research Unit, Brief Number 40, 22 September.
[2] International Crisis Group 2009, Pakistan: Countering Militancy in FATA, Asia Report No 178, 21 October
[3] Vira, V & Cordesman, AH 2011, Pakistan: Violence Vs Stability, Centre for Strategic & International Studies, 5 May
[4] Khan, MI 2010 ‘The Pakistani tribe that is taking on the Taliban’, BBC News, 7 October
[5] International Crisis Group 2009, Countering militancy in FATA, Asia Report No 178, 21 October
[6] Death toll rises to 36 in Pak bombing, 2012, The Sunday Indian, 18 February
[7] Blast at Pakistan town kills 26, BBC, 17 February 2012 and Grubbs, JT 2012 ‘The Looming Storm in Pakistan’s Kurram Agency’, Jamestown Foundation, Terrorism Monitor Vol X Issue 5, 9 march
Attacks on Shia’s continued into 2015. The South Asian Terrorist Portal contains information of multiple fatalities in the FATA in 2014 and two bomb blasts in Parachinar in 2014 and many suicide attacks in Parachinar in 2012 and 2013.[8] In 2015, the most significant incidents were the killing of two suicide bombers who were attempting to enter a football ground in Alizai in May 2015 and two guards were also killed.[9] In February 2015 Habib Hussain, a Shia Muslim was killed by the insurgent group ASWJ/TTP[10] and in June 2015 two security personnel were killed when their vehicle hit a landmine.[11]
[8] Suicide Attackers Gunned Down Before Reaching Target, FATA Research Centre, 7 May 2015
[10] ‘Shia Muslims shot martyred in Parachinar’, Shia Post, 7 February 2015
[11] Two Security Personnel Killed in Kurram landmine explosion, The Express Tribune, 25 June 2015

According to a more recent Department of Foreign Affairs and Trade (DFAT) Report in 2019[12], despite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal. Referring to reports of the South Asia Terrorism Portal (SATP), DFAT notes two incidents of sectarian violence in the former FATA in 2017 killed 92 people and injured 300, while no incidents of sectarian violence occurred between 1 January and 6 May 2018. In 2017, militants carried out several attacks in Parachinar:

-    On 21 January 2017, a bomb exploded in a crowded market, killing 25 people and injuring dozens more. Lashkar-e Jhangvi (LeJ) and the TTP claimed responsibility, saying they were responding to the death of LeJ leader Asif Chotu and support by Shia for Syrian president Bashar al-assad. According to Pakistani news outlets, this was the fourth time militants had targeted the same area of Parachinar in recent years.
-    On 31 March 2017, a suicide attack on a Shia imambargah killed at least 24 people and injured 100. Jamaat-ul-Ahrar claimed responsibility.
-    On 24 June 2017, two bombs detonated in a market busy with people preparing for EID celebrations, killing 72 people and injuring more than 200. LeJ claimed responsibility for the attack.
[12] DFAT Country Information Report, Pakistan 20 February 2019

DFAT assesses that Shia in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA.

Reporting on the situation of Turis, DFAT states that the Turi tribe is a Shia Pashtun tribe of around 500,000. The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shia, especially in Parachinar, rendering Turis and other Shia tribes of the former FATA amongst the most vulnerable across Pakistan. Between 2008 and 2014 Turis faced significant violence. Groups such as the TTP targeted Turis for their Shia faith. Militants frequently stopped and killed Turi’s travelling on roads. Deaths from terrorist attacks in Kurram Agency significantly increased in 2017 (see above). DFAT reports however, that operations Zarb-e-Azb, Radd ul Fasaad and associated counter terrorism activities significantly decreased the number and severity of attacks on Turi’s. In the first quarter of 2018 the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children. DFAT is unable to verify these claims. While minorities feel more protected, according to the media, discrimination and violence towards Shia tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of the Taliban and Al Qaeda.

DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shia groups.

Regarding the history between the Pakistani Taliban and the Turi tribe, the BBC reported in October 2010 that “the Turi tribe are waging a war of attrition with the Taliban”. The report goes on to say that the Turi tribe has traditionally abhorred the Taliban and in 2008 the Turi fought a major battle with the Taliban. [13]

[13] ‘The Pakistani tribe that is taking on the Taliban’, BBC News, 21 October 2010

An International Crisis Group report dated 20 August 2018[14] notes the merger of the FATA into an adjacent province, Khyber Paktunkhwa. The report states that the merger followed years of military operations against the TTP militants. Those operations broke TTP’s hold over most of the tribal belt but also displaced millions of residents, destroyed homes and ruined livelihoods. Security in those areas has improved but remains fragile. Afghan insurgents, including Afghan Taliban factions and allied militants, maintain sanctuaries in FATA from which they conduct operations in Afghanistan.

[14] International Crisis Group, Shaping a New Peace in Pakistan’s Tribunal Areas, Crisis Group Asia Briefing NO 150, Brussels, 20 august 2018

A 2017 meeting report drafted by the European Asylum Support Office (EASO) on the basis of presentations, discussions and participants notes includes commentary by Cyril Almeida, an Assistant Editor and Journalist of Dawn Newspaper in which he opines that while FATA is a lot more stable now than it has been, overall it is likely to be a security challenged region for many years to come. There will be a heavy military presence, with attempts by the militants to regroup and reassert themselves. In the same report, Nathalie Boschman, COI Expert, Cedoca, Belgium, opines that despite improved security after government launched operations in 2014 and 2017, violent attacks have continued with mass casualties especially in FATA and Balochistan. She opines that hot spots seem to be Quetta and Kurram Agency. She notes that the main actor is still the TTP which while fragmented is still active and dangerous.[15]

[15] EASO COI Meeting Report, Pakistan, Rome 16-17 October 2017,

Reporting on the security situation in Pakistan generally, DFAT[16] notes that the security situation is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Afghanistan. Overall, it is reported that there was a 29 per cent decline in the number of reported terrorist attacks in 2018 nevertheless Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups and ISIL affiliates conducted up to 171 of 262 reported terrorist attacks. The security situation varies across the country however and militant attacks can occur anywhere. Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh. While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018. DFAT reports that the underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018 and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.

[16] DFAT Country Information Report, Pakistan 20 February 2019

Having regard to the information set out above the Tribunal accepts that there has been a reduction in levels of sectarian and terrorist violence overall in Pakistan, as well as in the applicant’s home region. Indeed the Tribunal notes encouraging news reports[17] which indicate that some Sunni families have begun retuning to Parachinar after years of displacement and have been welcomed back by elders of the Shia community and Turi-Bangash tribes. However, despite these relatively recent developments, the Tribunal is satisfied the situation remains fluid and that unpredictable and sectarian attacks do and may still occur in the former FATA, including in Parachinar. The Tribunal accepts that the Taliban and associated extremists have waged a long campaign of violence against Shias, and Turi Shia’s including in Parachinar. While it is acknowledged that the last significant attacks on Shia’s in Parachinar occurred in 2017 the Tribunal’s assessment of the country information is that despite security improvements and an ongoing military presence there nevertheless remains a militant presence in the former FATA which even if currently reduced has the ability to reassert itself given the prevailing conditions reported by DFAT and others.

[17] Muhammad Irfan, ‘As Fata merges with KP, Parachinar’s Shias tell Sunnis it is time to come home’ June 28, 2018 ; ‘Sunni tribes start returning to Parachinar 11 years after displacement’

The applicant is a committed Shia and a Turi and the only member of his immediate family to have been educated to University level. Further, the Tribunal accepts his family has a [profile] in his local community which has resulted in them being targeted and harmed in the past. The Tribunal accepts that should the applicant return to Parachinar it is likely his family will expect and encourage him to be involved in community and religious affairs and the Tribunal is satisfied, given his dedication to his religion and declared interest in human rights and community volunteering that he would accept such responsibilities. While the Tribunal notes the applicant indicates that his family have suffered no serious harm in recent times his evidence is nevertheless that his uncle’s [institution] is still attracting adverse attention from extremists. Given the [nature] of the [institution] the Tribunal is prepared to accept this is the case. In view of the country information and given the applicant’s particular circumstances, which heighten his visibility and raise his risk profile, the Tribunal considers there is a greater than remote risk that he will be targeted by extremists if he was return to Parachinar for reason of his religion and/or Turi ethnicity in the reasonably foreseeable future.

The Tribunal notes that a person only has a well-founded fear of persecution if the real chance of serious harm relates to all areas of the country.
According to DFAT[18] Pakistani Shia live throughout the country in urban centres. Most Pakistani Shia are not physically or linguistically distinguishable from Pakistani Sunnis, however some Shia may be identifiable by common names; Shia mosques are clearly distinguishable and Shia dress in different garb during certain religious events. DFAT reports that Shia’s are most prominent and vulnerable during Shia religious events and gatherings such as Ashura processions. Sectarian violence in Pakistan has historically individuals, places of worship, shrines and religious schools, however Shia traditionally represented a higher proportion of the casualties. Shia continue to face a threat from anti-Shia militant groups, including LeJ, Sipah-e-Sahaba Pakistan, LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shia declared ‘non-believers’ or apostates and to eliminate other religious groups such as Jews, Christians and Hindus. The LeJ has claimed several attacks on Shia in recent years, particularly Hazaras in Quetta and other Shia groups in the former FATA and Karachi. In an open letter released in June 2011 LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shia and Hazara Shia’. According to the SATP 114 Shias were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with ISIL, claimed responsibility for many of the attacks. DFAT further reports that travel in parts of Pakistan is dangerous for all travellers, regardless of sectarian, religious or ethnic affiliations.
[18] DFAT Country Information Report Pakistan 20 February 2019
Overall, DFAT assesses that most Shia face a low risk of sectarian violence but this can vary depending on geographical location and for members of specific groups (Hazaras and Turis). DFAT reports that high profile Shia face a moderate risk of violence, as they are more likely to be targeted.
The UK Home Office[19] provides figures on the number of civilian casualties caught up in sectarian violence and notes that numbers vary according to different sources likely due to different methodologies on collecting dates. The report assesses that overall sectarian violence against Shias has declined since 2013. In general, the report concludes that a Shia Muslim is not likely to face a real risk of persecution and/or serious harm from non-state actors, though the risk may vary depending on location. Although there continue to be targeted attacks in Shia dominated areas, these are infrequent and do not generally amount to substantial grounds for considering there is a real risk of persecution and/or serious harm.
[19] UK Home Office, Country Policy and Information Note Pakistan: Shia Muslims, January 2019
Somewhat conversely the UNHCR[20] reports that the government has been criticized for failing to protect Shi’ite Muslims from attacks and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan. Despite efforts by regional authorities to provide additional security measures for Shi’ites in some situations the security situation for Shi’ites has reportedly not improved. Even where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites. Shi’ite individuals have held large protests to demand better protection and security from the authorities.
[20] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious minorities from Pakistan, January 2017
The report goes on to state that militant groups which are reportedly responsible for most of the attacks against Shi’ites in Pakistan are the Ahl-e Sunnat Wal Jama’at (ASWJ), the Lashkar-e-Jhangvi (LeJ); Tehrik-e Taliban Pakistan (TTP) and the Jundullah, a group closely affiliated with the TTP. There has reportedly been an increase in sectarian violence targeting Shi’ite groups at least since 2012, with attacks primarily targeting ordinary Shi’ite individuals. Militant groups are reported to have used suicide bombers and grenade attacks in crowded Shi’ite areas such as schools, shopping areas and markets, as well as buses and other vehicles. They have reportedly attacked Shi’ite pilgrims travelling to and from Iran, and are reported to have attacked mosques, particularly during prayer times, as well as religious festivals. They have also reportedly targeted the killings of Shi’ite professionals and officials, including doctors, lawyers, politicians, prominent business people and local traders. The UNHCR considers that members of the Shi’ite community may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion, ethnicity, (imputed) political opinion and/or other relevant grounds.
Based on the available information the Tribunal acknowledges that incidences of sectarian violence in Pakistan have declined, however, attacks on Shias nevertheless continue to be reported across the country and there is evidence to support that anti-Shia extremists continue to have an active and hostile presence in communities throughout the country. Several sources, including DFAT, also suggest that there are signs of growing religious intolerance and extremism in Pakistan. While the Tribunal acknowledges that there are reportedly large communities of Shia living in urban centres across the country, for the reasons outlined below, and given the country information, the Tribunal considers it prudent to adopt a cautious approach in this matter.
The Tribunal is persuaded, on the strength of the applicant’s oral evidence and supporting documents, that he is a religious person who outwardly demonstrates his commitment to his faith and his religious community through his attendance at religious ceremonies and participation in public demonstrations against attacks on fellow Shia’s. Further, the applicant has demonstrated a commitment to improving his Shia community through participation in welfare events and to community development in general. The Tribunal is satisfied he will continue to do so if he is required to return to Pakistan and that this will heighten his risk profile. The Tribunal also considers that if the applicant returns to Pakistan he would logically seek employment in his field of expertise ([specified]) which is likely to involve him travelling to outlying areas in the course of his employment and thereby placing him at additional risk of harm. The Tribunal is also satisfied that the applicant’s identification card would disclose him as a Turi Shia from Kurram Agency and that his tribal and religious background could easily be disclosed to Sunni extremists either in the course of his employment or when attending to routine affairs requiring him to disclose his identification. While the applicant has previously spent time living in [City 1] and Rawalpindi his evidence, which is accepted by the Tribunal, is that his Shia religion and/or Turi ethnicity did not go unnoticed in those locations and he was previously threatened, insulted, physically assaulted on one occasion and possibly followed by persons of anti-Shia/anti-Turi persuasion.
While the Tribunal does not contend that all Pakistani Shia’s are at risk of serious harm, taking into account the applicant’s particular circumstances together with the longstanding hostility between the Turi and the Taliban and associated extremist groups which are operating across Pakistan, the Tribunal finds that there is a real chance, which is not remote, that the applicant will be targeted because of the cumulative elements which make up his particular profile – his religion, his religious and community profile, his Turi ethnicity and his profession. The Tribunal is satisfied that the applicant’s real chance of harm from extremists extends outside of Parachinar in Kurram Agency to the whole country.
Having accepted there is a real chance the applicant would face serious harm in all areas of Pakistan the Tribunal has considered whether he could access effective protection measures (s.5LA of the Act).
DFAT reports[21] that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level and political will. Despite measures introduced to curb violence across the country under the NAP – strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families.
[21] DFAT Country Information Report, Pakistan, 20 February 2019
The abovementioned UNHCR[22] report states that the government has been criticized for failing to protect Shi’ite Muslims from attacks and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan. Despite efforts by regional authorities to provide additional security measures for Shi’ites in some situations the security situation for Shi’ites has reportedly not improved. Even where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites. Shi’ite individuals have held large protests to demand better protection and security from the authorities.
[22] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious minorities from Pakistan, January 2017
In view of this information the Tribunal finds that the applicant will be unable to avail himself of effective protection measures in the event he faces serious harm from extremists in other parts of Pakistan.
For these reasons the Tribunal finds that the applicant has a well-founded fear of persecution in Pakistan should he return there now or in the reasonably foreseeable future for reason of his Shia religion, his Turi ethnicity (race) and/or active and imputed anti-Taliban political opinion.
Therefore the applicant is a person is respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 2312

9 May 2019

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Immigration

Administrative Law

Statutory Interpretation

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Statutory Construction

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