1610543 (Refugee)

[2021] AATA 2351

1610543 (Refugee) [2021] AATA 2351 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610543

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Deputy President J.L Redfern PSM

DATE:11 May 2021

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 11 May 2021 at 1:45pm

CATCHWORDS

REFUGEE - Protection (Class XA)(Subclass 866) visa – Pakistan – claims based on Shi’a religion and Pashtun Turi ethnicity ­– membership of a particular social group – family association with Jirga elders – fear of harm from Sunni extremists and Tehreek-e-Taliban Pakistan –  whether the applicant faces a real chance of persecution in all areas of Pakistan –  assessment at time of decision but having regard to the reasonably foreseeable future ­–decision under review remitted with direction.

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5LA, 36, 36(2), 36(2)(a), 36(2)(aa), 499
Migration Regulations 1994 (Cth), Sch 2

CASES

AIE v Minister for Immigration and Anor [2018] FCA 610
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
FCS17 v Minister of Home Affairs [2020] FCAFC 68
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v RespondentsS152/2003 [2004] HCA 18
MZAKC v Minister for Immigration [2016] FCCA 834
SZFDA v Minister for Immigration and Citizenship [2007] HCA 41
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZSSM v Minister for Immigration and Anor [2013] FCCA 1489
1515694 (Refugee) [2019] AATA 6778
1608734 (Refugee) [2019] AATA 2312
1621948 (Refugee) [2021] AATA 703

SECONDARY MATERIALS

Department of Foreign Affairs and Trade, Country Information Report on Pakistan, 20 February 2019.
Department of Home Affairs, Procedural Advice Manual 3 Refugee and Humanitarian – Complementary Protection Guidelines
Department of Home Affairs, Procedural Advice Manual 3 Refugee and Humanitarian – Refugee Law Guidelines
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.

STATEMENT OF DECISION AND REASONS

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

2. The applicant was born in [year] in Abu Dhabi, United Arab Emirates (UAE). He claims to be a citizen of Pakistan. He and his family returned to live in Parachinar, which is the capital of the Kurram District in the province of Khyber Pakhtunkhwa, in about 2006. In 2018, the formerly Federally Administered Tribal Areas (FATA, also known as the tribal districts) became part of the Khyber Pakhtunkhwa province. The FATA included seven tribal districts, which included the Kurram Agency, now called the Kurram District. It is therefore clear that the applicant and his family lived in the region known as the tribal districts.

3. The applicant lived in Islamabad and Rawalpindi from 2010 until 2013 and first arrived in Australia on 1 July 2013 as the holder of a Subclass TU 573 Student visa. He applied for a protection visa on 16 December 2015. The applicant’s parents and three of his sisters still reside in Pakistan but his other siblings, including his older sister who lives in Australia, live outside Pakistan. These matters are not in dispute.

4. The applicant claims to fear harm from Sunni extremist groups if he returns to Pakistan because he and his family are Shi’a Muslims and belong to the Turi Tribe. The applicant’s father is said to be a Turi Elder and a member of the local Jirga, which is a tribal council or assembly. The applicant also fears he will be targeted by extremists on his return given his previous role in participating in protests and working for human rights organisations while in Pakistan and the fact that he has studied and lived in Australia for many years.  The applicant lodged a protection visa application which set out his claims. The application was refused on 24 June 2016, and the applicant applied to the Tribunal for review of this decision on 13 July 2016.

5. The applicant appeared before me at a hearing held on 1 December 2020. He was assisted by a lawyer, who was also a registered migration agent, and both attended the hearing in-person. He was fluent in English and did not need an interpreter. Prior to the hearing, the applicant provided a very detailed statement outlining his claims and evidence. He also provided, through his representative, submissions and references to country information said to be relevant to his claims on 14 December 2020 and 10 and 19 March 2021. I requested further submissions by letters dated 29 and 30 March 2021 and in response the applicant provided a further statement, an expert report, references to country information and detailed submissions through his lawyer on 19 April 2021.

6. I found the applicant to be a witness of truth, I am not satisfied fraudulent documents were lodged in relation to his student visa and I accept many of his claims. However, the determinative issue in this case ultimately turns on the available country information about the conditions in Pakistan at the time of my decision and how this impacts the applicant’s circumstances.    

7. For the reasons that follow, I am satisfied about the applicant’s claims for protection and I remit the decision under review.

   RELEVANT LAW

8. 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) of the Act. 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.

9. Section 36(2)(a) of the Act 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.

10. 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 themselves of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act.

11. Under s.5J(1) of the Act, 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-5LA of the Act, which are extracted in the attachment to this decision.

12. The criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) of the Act imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

13. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion), that reason (or reasons) must be the essential and significant reason (or reasons) for the persecution: s.5J(4)(a) of the Act. The persecution must also involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c) of the Act.

14. For the purposes of s.5J(4), s.5J(5) of the Act provides that the following are instances of serious harm: (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.

15. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

16. A family is capable of constituting a particular social group for the purposes of s.5J(1) of the Act. However, this is subject to s.5K of the Act, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:

    (a) any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has experienced, where the reason for the fear or persecution is not a reason mentioned in s.5J(1)(a); and

    (b) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.

17. Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s.5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group, political opinion) will not have a well-founded fear of being persecuted within the meaning of s.5J of the Act.

18. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) of the Act provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

19. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

20. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act (‘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) of the Act, which are extracted in the attachment to this decision.

21. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

    Mandatory considerations

22. In accordance with Ministerial Direction No.84,[1] made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Home Affairs (the Department) - Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines’ and Procedural Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines’. The Tribunal must also take into account any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.

23. The most recent report from DFAT is the Country Information Report for Pakistan dated 20 February 2019. I have considered this report, together with other relevant country information, including country information provided by the applicant’s representative. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances. My analysis of this country information and any relevant guidelines are set out later in these reasons.

    BACKGROUND AND SUMMARY OF THE APPLICANT’S CLAIMS

24. The applicant is [x] years old. He is an ethnic Pashtun of the Turi tribe and a Shi’a Muslim. His parents are both alive and he has four sisters and two brothers. His parents and three of his sisters live in Pakistan, his older sister lives in Australia and his two brothers live outside Pakistan. The applicant has tertiary qualifications, he speaks, reads and writes English and Urdu and speaks and reads Pashto.

25. The applicant arrived in Australia in July 2013 as the holder of a Subclass TU 573 Student visa. The visa expired on 22 September 2016. Before the expiry of this visa, the applicant applied for a further student visa, which was refused on 12 December 2016. The applicant sought a review of this decision and the Tribunal, differently constituted, affirmed this decision on 26 February 2018.[2]

    [2] Case No. 1622395.

26. The previous Tribunal observed that the applicant had completed his Bachelor of Business (Information Systems) early and that he was recognised for inclusion in the Dean’s List for Academic Performance because he had achieved at least three distinctions each trimester. He had previously completed a Diploma of Information Technology and an Advanced Diploma of Network Security. It is recorded in the decision record that the applicant said that it was his intention, after completing his studies in Australia, to develop the skills required by the Australian labour market and to apply for permanent residency eventually through this pathway. This evidence is consistent with the evidence given by the applicant at the hearing before me about why he did not lodge his application for protection earlier.

27. The previous Tribunal member was satisfied that the applicant was ‘a genuine student studying courses relevant and with value to his future’ but was not satisfied that he intended to genuinely stay in Australia temporarily because the applicant had, by this stage, made an application for protection which was said to evince an intention to remain in Australia indefinitely, inconsistent with the essential criteria for the student visa. There was no consideration recorded in the Tribunal decision about whether the applicant had lodged false financial information but this is unsurprising as this was not the basis for the refusal, nor was there any information on the Department file about this issue.

28. As noted, before the applicant’s review of the student visa refusal was determined, the applicant applied for a protection visa. It was recorded in his application that the applicant feared returning to Pakistan for the reasons set out in a statement dated 16 December 2015. The applicant also provided a statutory declaration declared on 14 June 2016.

29. In brief, the applicant fears that he would face serious harm including kidnapping, torture, and possibly being killed by Islamic extremists, including the Tehreek-e Taliban Pakistan[3] (TTP) and ISIS, because he belongs to the Turi tribe, his father is an elder and a member of the Jirga, he is a Shi’a Muslim and has been involved in Moharram activities and he and his family are perceived as holding an opinion against the Sunni Islamic extremists. Authorities will not protect him as there is a link between Sunni extremists and authorities and if he moves to another area of Pakistan he will be identified as a Turi Shi’a and will be targeted and harmed. The applicant also fears he will be perceived as a western spy as he has studied in Australia and been involved with non-governmental organisations. In his statutory declaration the applicant stated:

    (1)The applicant’s father went to the UAE in the 1980s and he and his family lived there, while the applicant’s eldest uncle, [name removed], looked after the family business affairs in Parachinar, until 2006. His father returned to Parachinar every two to four years for around one to three months. His father actively participated in Anjuman e Hussainia in UAE as did his eldest uncle. His uncle was said to be facing ‘many difficulties and threats’ from extremists in the Kurram Agency at this time.

    (2)The family returned to Pakistan in 2006 and the applicant attended the local school.

    (3)In 2007, there were tensions between the Shi’a and Sunni Muslims in the Parachinar area. The applicant witnessed the city becoming a war zone, with bomb blasts and random shootings. His father and uncle had to fight. The war continued until 2009 and there were many deaths, including a close friend of his and his cousins from another village. The applicant completed his education in 2010 and his father decided to send him overseas because of the unrest. This did not eventuate and instead it was decided that the applicant’s studies would be completed in Islamabad. After the applicant finished his schooling in Islamabad, he enrolled in an IT course in Rawalpindi. Over this period the applicant became involved with the Pakistan International Human Rights Organisation (PIHRO), Imamia Student Organisation (ISO) and the Anwaria Welfare Organisation. He also took part in the Youth of Parachinar demonstrations in Islamabad.

    (4)The applicant’s father and his uncle were receiving threats from various groups in Parachinar. His father took an active role in resolving local issues and disputes and he was involved in the local Jirga. His father and uncle were still working in the local community.

    (5)In 2012, the applicant was travelling back from school to Parachinar on the Thall-Parachinar Road. He was in the van with a number of others travelling to Parachinar and they were pulled over and questioned. They were eventually let go and allowed to continue travelling but the applicant did not arrive in Parachinar until late that night. After this, his father was anxious for him to leave Pakistan and encouraged him to apply for a student visa. According to the applicant, it was his intention to continue his studies and attempt to obtain permanent residency through a skilled visa application.

    (6)After the applicant came to Australia there were a number of incidents in the Parachinar region and his father received threatening calls and messages from extremists such as the TTP. On [date] October 2015 the applicant’s father and uncle were travelling back home from Parachinar city and they were attacked by unknown culprits who fired gunshots. They sustained injuries were taken to hospital. When the applicant heard about the attack he was concerned and, after discussing the matter with his brother-in-law, decided to apply for a protection visa in Australia.

    [3] Tehrik-e-Taliban Pakistan is an alternative spelling.

1. In addition to his statutory declaration, the applicant provided:

   (1)A letter dated 24 January 2016 alleged to be from the Secretary of Anjuman e Hussainia stating that the applicant’s father was a ‘popular figure’ in the Kurram Agency, Parachinar. A further letter was provided by the Secretary dated 22 November 2015 to the effect that the applicant had resided in the village of [removed], Parachinar, which was said to be a tribal area situated in the remote corner near the Afghan border. It was also stated that terrorists were active in the area and that the applicant’s father was an elder in the village, who had been threatened by the TTP;

   (2)A letter from the Haidri Blood Bank and Welfare Society dated 4 October 2014 said to have been signed by the Chairman stating that the applicant had been injured in a firearm attack in 2012;

   (3)A letter from the PIHRO dated 5 June 2013, thanking the applicant for his services in working for the organisation. There is also a reference to the incident said to have taken place in May 2012;

   (4)Various photos of the applicant’s relatives, untranslated ID cards and a passport showing that the applicant is a Pakistani national;

   (5)FATA Tribunal, Peshawar, document dated 17 June 2013;

   (6)Document headed ‘Information report from the city check-post’ dated 15 October 2015, claiming to report on an incident with gunfire shots involving the applicant’s father and uncle (both translated and untranslated versions);

   (7)Document headed ‘Agreement regarding division of common land’ dated 8 April 2014 signed by the applicant’s father and purporting to show his involvement as an elder in the local community (both translated and untranslated versions);

   (8)Document dated 31 May 2002 claiming to show the involvement of his father as a Turi elder (both translated and untranslated versions):

   (9)Letter, purportedly from the TTP, being a threat to his father, undated but translated on 13 June 2016.

2. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia had protection obligations under ss.36(2)(a) or (aa) of the Act. In essence, the delegate did not accept the applicant had a genuine fear of harm. The delegate was not satisfied about the credibility of the applicant’s claim that he was involved in any human rights activities while in Pakistan or that he genuinely feared harm, and found that applicant had submitted fraudulent documents in support of his application for a student visa, which undermined his credibility. The delegate considered it significant that the applicant had delayed making the application for protection for 18 months. In addition, the delegate was not satisfied there was country information to support the applicant’s claims.

3. It is relevant to outline the delegate’s decision in relation to his concern about fraudulent documents as it is clear from reading the delegate’s decision that this was a significant matter. The delegate noted that the bank statements submitted by the applicant in support of his student visa were the subject of random verification by the Department. The delegate noted that it was put to the applicant that the branch manager of the bank where he claimed to have held an account stated that no such account existed in the branch and the document submitted for verification was ‘a forgery’. It is noted in the decision record that the delegate put the contents of the Department email to the applicant and the applicant denied he had submitted any fraudulent documents to the Department in support of his student visa application. This is a matter that was subsequently addressed by the applicant in his evidence before me.

4. There is a certificate on the Department file regarding the disclosure of information under s. 438 of the Act. Section 438 provides that the Minister or his or her delegate may certify that it is not in the public interest to disclose certain information and, if so, must notify the Tribunal about this.  The Tribunal may have regard to and disclose the information if it is considered appropriate. The certificate stated that the disclosure of the documents would be contrary to public interest because the documents contain information relating to “internal working documents and business affairs”. The documents comprise the email correspondence referred to in the decision of the delegate, which was an email to the post at Islamabad asking various details about the bank account details provided by the applicant in support of his application for a student visa. This was requested on 17 July 2013. A response was provided by the branch to the effect that the applicant did not have an account in his name in the nominated number at the branch and accordingly the document provided was “fake and bogus”. I do not accept that the reason given for the non-disclosure certificate is a valid reason for the documents not to be disclosed to the applicant. However, it is apparent that the delegate in fact disclosed this information to the applicant because it is recorded in the decision record that he read the content of the emails between the Department and the bank manager to the applicant during the interview.

5. Despite the earlier concern about the applicant’s student visa, the visa was not cancelled on this basis and there is no evidence before me about what happened as a result of these enquiries. It also appears that the information in these emails was not provided to the applicant before his interview in June 2016 but was raised at the interview. In any event, after reviewing the material and discussing these matters with the applicant at the hearing, I was not satisfied that fraudulent documents had been provided by the applicant in support of his student visa and therefore I am not satisfied that this impacts negatively on his credibility. My analysis of this issue is outlined in more detail later in my reasons.

6. The applicant applied for review of the decision of the delegate to this Tribunal on 13 July 2016. There was a delay in being able to list this matter before a Tribunal member and the applicant and his representative were invited to attend a directions hearing by telephone on 21 October 2020 to discuss a proposed hearing date. The applicant was requested to provide additional evidence and country information in support of his claims, which were provided on 20 and 24 November 2020. He also provided submissions and further country information after the hearing. The evidence and submissions are outlined below. The applicant’s current claims are consistent with and similar to the claims he made in his application and in the interview with the delegate.

   OUTLINE OF EVIDENCE

7. The applicant provided a very detailed statement dated 20 November 2020 which he referred to as “a summarised history of my life”. The statement was indexed and 36 pages in length. In addition to this, the applicant attached 22 documents to his statement which were said to support his claim. These documents comprised documents relating to his father’s position as an elder, media articles, extracts from Facebook and photographs. He also provided a short statement from his father, a handwritten statement from [witness A], a statement from [witness B] and a letter dated 20 October 2020 from [witness C], President of the Iman Hasan Centre, [city].

8. The applicant gave oral evidence at the hearing before me. He requested that I take oral evidence from his father and two of the witnesses, who live in Pakistan, together with evidence from [witness C], who lives in [city]. I advised the applicant and his representative at the hearing that I would defer my decision about taking evidence from them after I had taken evidence from the applicant. Ultimately, I decided it was unnecessary to take evidence from these proposed witnesses because I accept the contents of their statements insofar as they set out factual matters, rather than matters of opinion.

9. The applicant’s father, [name removed], stated that he belonged to the Duparzai caste of the Turi tribe. He moved to the UAE for his and his family’s safety but was deported in 2007 following, what he says, was the deportation of Shi’a Muslims at that time. He states that he served on local organisations in the community and Anjuman e Hussainia and has voluntarily helped in many conflicts with the police and the court. His brother, [name removed], has also served on Anjuman e Hussainia for a long period of time and is well known across the region. According to the applicant’s father, the applicant was targeted in a van back in 2012 and road incidents were “very common” along this road. He and his brother were targeted locally but they had survived. The targeting of well-known people in the area is not uncommon and he is concerned about his sons’ safety and would prefer them to all live overseas. He further states that if he could, he would live in the UAE. Anjuman e Hussainia is a representative welfare organisation of the Turi-Bangash tribes.

10. I accept that the applicant’s father is from the Turi tribe, that he is an elder and that he is in Anjuman e Hussainia. I also accept that he is well known in the region and has assisted the Shi’a community in various local conflicts. This is evidenced by information provided by the applicant about the various tribunal documents and agreements negotiated by his father over the years. While I agree that there is country information to the effect that there is a prevalence of fraudulent documents from Pakistan, in this case the documents appear, on their face, to be genuine and, for the reasons I later outline, I accept the credibility of the applicant on many of the claims that he has made. I also accept that it is entirely plausible that the applicant’s father and uncle have been targeted on occasion by extremists and that the applicant’s father wishes to see his sons residing in another country for their safety. In relation to the statement made that the applicant was ‘targeted’ in a van in 2012, for the reasons later outlined I accept that this happened but do not accept that the applicant was specifically targeted. The applicant’s father states that road incidents were “very common”. This is a broad statement which I do not accept without qualification. Relevantly, there is country information, referred to later in this decision, that suggests attacks on the Thall–Parachinar Road have not been uncommon in certain periods. My findings in relation to the relevant circumstances in Pakistan are set out in more detail later in these reasons.

11. [Witness A] states that the applicant’s father is a “renowned person” of Parachinar and he had resolved various land disputes, including a dispute over a mountain between a number of villages that was before the FATA Tribunal. The statement from [witness B] is of similar effect, noting also that the applicant’s father was a member of Anjuman e Hussainia.

12. I accept this evidence relating to the applicant’s father.

13. According to [witness C], the Imam Hasan Centre, [city], is an educational, cultural, not for profit charitable association to serve the ongoing social, spiritual, educational, welfare and religious needs of the Shi’a Muslim in the Isna-Ashari community in the [state]. I accept that such an organisation exists and that this is its role. The applicant is said to be an active community member of the Centre, which I also accept.

14. The detailed statement by the applicant provided important insight and background in relation to his claims. The statement included factual information regarding the applicant’s claims and his personal circumstances, detail about the applicant’s life while he was in the UAE and once he returned to Pakistan, evidence about what he observed living in Parachinar, the details about the incident that he says happened to him in 2012, details about his activities in Rawalpindi, information about the financial documents provided by him in respect of his first student visa application, including details about the progress of his studies and the subsequent refusal of his student visa, his father’s profile and details of his activities while he has been in Australia. The key matters referred to in that statement relevant to the applicant’s claims are set out below:

    (1)The applicant was born in the UAE after his father and the rest of his family migrated there. His father was active in the Shi’a community living there and supported members of the Turi tribe who were living in the UAE. Anjuman e Hussainia was founded to assist the Turi tribe members. The applicant’s Turi tribe was the Duparzai caste.

    (2)According to the applicant, members of the Turi tribe are often targeted. Anjuman e Hussainia looks after the interests of the Turi community and participates in the local Jirgas to resolve issues. The applicant’s father was involved in this while he was in the UAE.

    (3)Despite having been born in the UAE, the applicant does not have a right to enter and reside in the UAE.

    (4)The applicant and his family travelled back to Parachinar on a regular basis while they were living in the UAE. In about 2006 or 2007 the applicant’s father was not allowed to return to UAE to live and, after a dispute with his employer in the UAE, his father was sent back to Parachinar. After this, the applicant and his family resided in Parachinar, Pakistan.

    (5)Unrest and violence broke out in Parachinar from 2007 and, even though the applicant and his family lived in [removed] which was a village in the valley near Parachinar, the applicant said that he witnessed bomb blasts and gunfire on a regular basis. This unrest continued until about 2011 and his father and uncle were involved in defending the village on occasion. The applicant stated that he knew friends and relatives who died from the conflict. The applicant was shocked by these events.

    (6)According to the applicant, members of the Turi tribe in Parachinar have been targeted by extremists because of their role in the region in opposing extremists.

    (7)The applicant recounted details about a bomb blast in Parachinar when he was at school. This occurred in 2008. The applicant attached to his statement a media report about the bombing which, according to the report, killed 37 people in the region.

    (8)Because of the unrest and violence, the applicant’s father wanted him to leave Parachinar. The applicant’s uncles, cousin and brother were all living in Abu Dhabi at this time. Rather than join his relatives in Abu Dhabi, the applicant discussed with his father travelling to Australia as a student to study. His father was concerned about his safety and arranged for the applicant to live in Islamabad to undertake the necessary English test for entry as a student. The applicant failed this test at that time and decided to finalise his studies in Islamabad. The applicant included details about his attempts to travel to Australia on a student visa and the depression that he says he experienced as a result of these unsuccessful attempts.

    (9)After finishing his studies, the applicant travelled to Rawalpindi to undertake further study where he says he was involved with the ISO and was actively involved in other protests that were taking place at the time. He lived with friends from Parachinar. According to the applicant, there was violence and attacks against Shi’a Muslims in Rawalpindi, but the media did not report this.

    (10)The applicant completed his studies in 2012 and was travelling home on a minibus on the Thall–Parachinar road when the bus was attacked by gunfire. Some of the occupants were injured, although the applicant was not. An army officer said that he would drive him home to Parachinar. The applicant agreed but the army officer did not take him and became diverted, arranging for the applicant to be transported back to Parachinar in an ambulance. The applicant expressed anger with what happened during the journey. The applicant left the van at his village just before arriving in Parachinar. The applicant attached a copy of a news report referring to this attack.[4] The article was headed “Several injured in Parachinar passenger van ambush”. The article notes that “unidentified miscreants” ambushed a Parachinar bound passenger van near an area in the lower Koran and that the passengers belonged to the Turi Bangash tribe. The article also noted the tribesman allege that the TTP and the security forces deployed in the area were in collusion and that since the opening of the Thall–Parachinar road[5] this was the 20th incident of a terror attack. This media report is consistent with the applicant’s claims about the attack.

    (11)The applicant prepared his application for a student visa with the assistance of an agent. According to the applicant, his father had money in an account to finance his studies, but the agent suggested that he should organise a loan through UBL bank, which the agent said would be accepted by the Department. The applicant left to fly to Australia on 17 June 2013, but he was stopped at the airport. After a number of attempts to travel to Australia on his student visa, the applicant was finally allowed to leave, and he arrived in Australia on 1 July 2013.

    (12)The applicant stated that he met with immigration lawyers in September 2013 to seek advice about whether he should apply for a protection visa. He decided not to proceed at that stage because he believed it would be preferable to finalise his studies and apply for permanent residency through a skilled visa.

    (13)The applicant completed his Diplomas in IT and network security and applied for a bachelor’s degree with the University of[removed]. To his surprise, this was rejected in September 2015 by the University of[removed] because the applications area was not satisfied that he would meet the genuine temporary entrant requirements that universities were now required to consider as part of the streamlined visa processing arrangements.  The applicant extracted a copy of the email from the University of [removed] dated 16 September 2015. As a result of this, the applicant became concerned about his prospects. In addition to this, at about this time his brother was deported from the UAE and he was also informed about the targeting of his father and uncle by extremists in Parachinar. As a result of all of these matters, the applicant decided he would proceed with his application for a protection visa. He arranged for information to be provided from Pakistan to support his claims and lodged his application in December 2015.

    (14)The applicant attended an interview with a delegate where he was questioned about his claims. He was asked about a ‘bogus’ document that was said to have been provided with his original student visa application. The applicant stated that he was shocked by this and he tried to get verification from the bank about the document. The applicant stated that he had provided the correct documents from the bank, being loan documents, but because the issue had not been raised with him before, he did not understand how the documents could be fraudulent and he was not able to disprove the alleged claim. He did not feel he had been given a proper opportunity to explain his claims and circumstances.

    (15)After his protection visa was refused but before his first student visa had expired, the applicant applied for another student visa. This was refused on the basis that he was not a genuine temporary entrant to Australia. There was no reference to fraudulent documents in the refusal. The applicant appealed to the Tribunal and the previous Tribunal, as outlined above, affirmed the decision under review. The Tribunal member was not satisfied that the applicant was a genuine temporary entrant, essentially because of the application for protection made by the applicant which suggested that the applicant intended to stay in Australia indefinitely.

    (16)The applicant stated that he had been involved in the Iman Hasan Centre in [city] and he had been involved in protests from time to time.

    (17)In 2007, the applicant travelled to Iran to visit his parents for the first time since he had left Pakistan. He was on a bridging visa at that time. According to the applicant, when he was overseas, he was ‘invited’ to apply for Subclass 190 visa but he was rejected because it was stated that he had not lived in [city] for five years, which he says was not the case. This evidence was confusing, but I did not question the applicant about this at the hearing because it was not relevant to his claim for protection.

    (18)The applicant stated that his father was a Turi elder with a known profile in the region for assisting in resolving disputes and conflicts for the community. His father had been recently threatened by extremists. He is the President of the Public Forestry Department and had been involved with many non-government organisations on a voluntary basis. The applicant provided a copy of a media article referring to violence against the Shi’a community as recently as 2020.

    (19)The applicant states because he is Pashtun, he will have difficulties in returning to Pakistan or relocating outside his hometown.

    [4] Also spelt Thal or Tall.

1. The attachments to the applicant’s statement were generally supportive of his claims. There was a media report dated 12 February 2013 about the fact that the UAE ambassador had been summoned to the foreign office in Pakistan about the forced deportation of Shi’ite Muslims and, in particular, Turi belonging to the Kurram district.[6] There were also media reports about violence and a suicide bombing in February 2014 at a local hotel frequented mostly by Shi’as in the capital of Khyber Pakhtunkhwa province,[7] the intensifying of security after a recent suicide attack in Parachinar in April 2017,[8] protests in relation to a “series of bloody attacks” that targeted Shi’a Muslims in the Kurram tribal area (reported by Al Jazeera on 30 June 2017)[9] and more recent media reports about increased sectarian violence during 2020 against Shi’as.[10]

   [6] Attachment 2.

   [7] Attachment 7.

   [8] Attachment 9.

   [9] Attachment 10.

   [10] Attachments 14, 15, 16, 17, 18, 19 and 20.

2. At the hearing, the applicant gave a consistent account of his claims. Given the detail provided in his most recent statement, the applicant was questioned about aspects to clarify or expand on the evidence provided in his statement. For instance, his statement contained considerable detail about the circumstances giving rise to the attack that he alleged took place in May 2012, some of which was confusing. In his oral evidence, the applicant clarified this evidence and confirmed that he was travelling from Rawalpindi (where he had been studying) to Parachinar and that the van he was travelling in was attacked with gunfire. He was one of several passengers on the van and was not himself hurt. As already noted, this account is consistent with media reports about the incident at the time.

3. The applicant also gave evidence about the incident involving his uncle and father in October 2015 and said that he did not know about this at the time, but he was subsequently advised about this by his father. He said that his father did not want to tell him initially because he did not want the applicant to be concerned. The applicant expanded on the statement that he made about why he had delayed in making an application for a protection visa. He said that his original intention had been that he wanted to apply, after completing his studies in Australia, for a skilled visa and because he was confident that he would be able to do this, he did not apply for a protection visa when he first arrived in Australia. He denied that he had lodged any fraudulent documents in connection with his student visa and confirmed the evidence as set out in his statement that he did not understand the basis of this claim and would have sought to provide evidence at the time if it had been raised. He said that he was a genuine student who had completed his studies at a high level and that this had been upheld by the previous Tribunal that dealt with the review in relation to the refusal of his student visa. However, he accepted that the presiding member had found against him because he had made an application for protection.

4. The applicant said that he was very fearful of returning to Pakistan and was traumatised by the years that he had spent living in Pakistan, particularly with fighting and bomb blasts very close to his village. He said that his home village of [removed] was small and that there were only about 140 families that lived in the village. I asked the applicant about a letter the applicant had provided with his application, being an undated letter, said to have been received by his father from the TTP threatening him. The applicant said that threats by the TTP at this time were not uncommon and his father would have disregarded it. He said that his father still lives in [village] together with his mother and three sisters. His uncle also lives there but none of his cousins have remained in Pakistan. His brothers live overseas. The applicant said that he believed the Shi’a have been targeted by authorities and was very concerned about his safety if he returned to Pakistan. The applicant accepted that since the attack in 2015, neither his father nor uncle have been harmed by extremists but he nonetheless remains concerned that they may be and that he, as the son of his father, may be targeted and harmed on his return. He does not believe that he will be protected by authorities or that he could relocate to a safer place. The applicant believes that all locations in Pakistan outside his hometown would not be safe for him. The applicant pointed to recent media reports, being those attached to his statement, to support his claims.

5. In a statement provided after the hearing, the applicant stated that even though he had resided in Rawalpindi and Islamabad for around three years between 2010 and 2013 he did not believe that he would be able to live there safely. He would have difficulty hiding his ethnicity and background and he would have practical difficulties in obtaining a job and renting a place to live. The applicant believes he would be easily identified as an educated Turi Shi’a and that he would therefore be targeted.

   SUBMISSIONS

6. The applicant relies on the submissions made by his representative to the delegate dated 14 June 2016. In summary, the applicant claims that protection obligations are owed to him because he meets the refugee criterion. He has a well-founded fear of suffering persecution for the cumulative reasons of his membership of the Turi tribe in the Kurram district, the fact that he is a practising Shi’a Muslim, he holds an imputed political opinion against the TTP and he is the member of a particular social group, namely, he is a young male from the Turi tribe, the member of a family who has been actively anti-Taliban and he is a young Turi male who has been educated in the West.

7. In submissions provided prior to the hearing before me,[11] the applicant’s representative submitted that there was evidence of continuing persecution against Shi’as in Pakistan and that there has been a resurgence of Sunni Islamic extremists in Pakistan. It was also submitted that TTP militants were returning to Parachinar and that there is evidence of violent incidents having increased in recent months. It is submitted that there is growing sectarian violence in the recent past in Pakistan, state organisations and authorities support radical Sunni extremists who consider Shi’as as Kafir[12], there is a trend that blasphemy cases have been filed against Shi’as and the government is it inciting religious violence. The applicant’s representative referred to media articles and reports which are said to support this submission and these articles are referred to in more detail in my assessment of the available relevant country information. It is submitted that the reporting attached to this submission “confirms that Sunni extremists continue to target and kill Shi’as” and “operate with impunity in Pakistan”. It is claimed that it is therefore “extremely impossible to get effective protection in Pakistan because the Pakistani government is either unable or unwilling to protect Shi’as, particularly Shi’as who have a particular profile as our applicant”.[13]

   [11] Dated 24 November 2020.

   [12] A non-believer.

   [13] Submission dated 24 November 2020, page 5.

8. It is further submitted that the Inter-Service Intelligence Agency in Pakistan has close links with Sunni extremist organisations and the TTP remains a threat to security in Pakistan. The recent media reports attached to the representative’s submissions are said to support the contention that the Pakistani government “passively and actively condones and in fact encourages Sunni extremists and terrorism in Pakistan as well as across the region”. As such, the applicant as a Turi Shi’a with an adverse profile is vulnerable to targeted attacks.[14]

   [14] Ibid, pages 7-8.

9. Specific to the applicant’s circumstances, his representative submits that the applicant comes from a village in Parachinar in the Kurram district, which borders with Afghanistan. He is of Turi Shi’a ethnicity and holds opinions against the TTP and affiliated Sunni extremists. It is submitted that the applicant would be targeted in Pakistan because of his profile and his family’s profile by Sunni extremists, including the TTP who remain active in the area. It is submitted that the applicant would be targeted throughout Pakistan on the basis of his profile and his ethnicity as a Pashtun.  His representative contended that Pashtuns are subject to racist stereotyping and racial profiling and that they are “severely discriminated against” outside the FATA.[15] It is for this reason it would not be reasonable for the applicant relocate within Pakistan. It is contended that, given the climate of increasing sectarian violence in Pakistan and particularly the growing anti-Shi’a sentiment, relocation would not be reasonable. Sunni militant groups consider Shi’as as infidels and Shi’as in Pakistan live in fear due to the prevalence of violent attacks from such militant groups, which are reportedly able to act with impunity.[16]

   [15] Ibid, page 9.

   [16] Ibid.

10. It is submitted that the security situation has significantly deteriorated in Pakistan, particularly in Kurram district, since the delegate’s decision, in that State protection from the Pakistani government in the applicant’s home area “remains weak, unpredictable and vulnerable to significant corruption”. It is contended that the State cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003.[17]

    [17] [2004] HCA 18.

11. As such it is submitted that the applicant would not be able to avail himself of effective State protection against such harm. On the question of relocation within Pakistan, it was submitted that the High Court endorsed the proposition in SZATV v MIAC[18] that a person will not be excluded from refugee status merely because they could have sought refuge in another part of the same country, if under the circumstances, it would be would not be reasonable to expect them to do so. In this case, it would not be reasonable for the applicant to relocate if he would have to adapt his behaviour to avoid persecution by ‘living discreetly’. If a person was required to sacrifice one of the ‘fundamental’ attributes of human existence this would be inconsistent with the refugee criteria and the Convention. It is contended that in this case the applicant would be required to “both live discreetly and to disown his personal cultural religious and political commitments in order to reduce the risk the chance of harm to himself from the agents of harm”.[19]

    [18] [2007] HCA 40.

    [19] Submission dated 24 November 2020, page 11 referring to SZFDA v MIAC [2007] HCA 41 and Appellant S395/2002 v MIMA [2003] HCA 71.

12. In post hearing submissions dated 14 December 2020, the representative referred to further media articles and online news and made additional submissions to the effect that young Shi’a men were targeted and subject to enforced disappearance and torture, that Pakistani authorities actively participated in the abduction of young Shi’a men who challenge the Pakistani authorities’ inability to protect Shi’as, Shi’a places of worship and religious processions continue to be the subject of targeted attacks from Sunni Islamic extremists, particularly in the Kurram district, as well as in bigger cities such as Karachi; TTP militants are returning to Parachinar and there is evidence that these non-state actors are acting against the Turi tribe members with impunity; the deteriorating situation in the Kurram district further highlights the role of state authorities and state-sponsored paramilitary organisations in perpetuating violence against Shi’a tribe members in the region; anti-Shi’a hate campaigns and sectarian violence are on the rise in Pakistan as well as targeted killings of Shi’a and in particular young Shi’a men and educated Shi’as are often the targets of sectarian killing in Pakistan. This is said to support the contention that the applicant fears that if he returns to Pakistan he would be targeted because of his profile, the fact that he is a young Shi’a male who is Western educated and because has been involved in protests in Australia.

13. In the second post hearing submission provided to the Tribunal on 10 March 2021, it was submitted that Pakistan’s minorities, including Shi’a, always live under the “cloud of insecurity and fear” and are targeted, Pakistani minorities including Shi’a are demonised and this has not changed under the rule of the new Imran Khan government, militant attacks are on the rise in Pakistan, security analysts and experts have opined that the “unification of a splintered militancy” is dangerous for Pakistan and successive Pakistani governments, including the current one, have exploited extreme religious ideologies to ‘garner votes’. As such, the government authorities are either unable or unwilling to protect people like the applicant. The submission attached a newspaper article from Associated Press dated February 2021, a copy of an article from the monthly publication of Persecution International Christian Concern and an article from the Observer Research Foundation dated 26 January 2021 to the effect that the plight of minorities under the rule of Imran Khan has not changed. Relevantly, the submissions made were along the same lines as the previous submissions made on 14 December 2020, although the representative sought to rely on more recent articles to support these contentions. It was also submitted that the applicant does not have a current national identity card, that he would have to present himself at the National Database and Registration Authority (NADRA) in his home province and this would require him to travel to Parachinar to obtain his new smart national identity card which would expose the applicant to further risk of harm.

14. In a third post hearing submission provided to the Tribunal on 19 March 2021, the applicant’s representative provided a copy of an article dated 17 March 2021 from The Florida Star – The Georgia Star together with a submission to the following effect:

    We respectfully submit that based on the country information we provided, there is no constructive steps taken by the Pakistan authorities against Sunni Islamic extremists. Country information indicates that the risk to the appellant remains critical and real. Turi Shi’as with a profile as our applicant still face a real risk of harm including ill-treatment and serious discrimination as well as the risks of attack. Sunni Islamic extremists remain active in Pakistan.

    We submit that the reach of extremists throughout Pakistan, including Parachinar and other major cities, shows that the appellant is at risk of persecution throughout Pakistan. County information, we have provided shows that no meaningful internal protection alternative can exist for the applicant in Pakistan given the Sunni extremists ability to reach targets throughout the country.

    We note that militant groups have merged and the merger could assist Sunni extremists to create a buffer zone on the Afghanistan/Pakistan border, which could host Islamist foreign fighters to infiltrate at ease into Pakistan to carry out targeted attacks. We also submit that the reunification could set back Pakistan’s counterterrorism campaign as evidence from the reports.

15. Because certain issues were not specifically discussed during the hearing or addressed in the submissions, I caused the registry to write to the applicant on 29 and 30 March 2021 to seek submissions in relation to two issues. The first issue related to an article published on 27 November 2019 to the effect that NADRA had launched online registration for a computerised national identification card (CNIC), suggesting that the applicant would be able to apply online for the relevant national identity card without the need to attend an office in person. The second issue raised concerned country information in a Thematic Report of DFAT on Shi’as in Pakistan (published in 2016) and a report from the European Asylum Support Office (EASO) suggesting that it may be safe for the applicant to reside outside his hometown in, for instance, Islamabad or Rawalpindi.

16. The applicant provided the further statement referred to above stating that he did not believe he would be safe in Rawalpindi or Islamabad. He also provided further country information and media articles supporting his claim. His lawyer provided media articles and a further submission to the effect that the applicant had an adverse profile, his family had an adverse profile, there was country information about the targeting of Shi’as, particularly Turi Shi’as who are educated, and the continued terrorist attacks against the Shi’a minorities in major cities including Islamabad, Rawalpindi, Karachi, Peshawar and Lahore. In addition, the applicant’s lawyer made a submission, together with supporting documentation, that even though the applicant had a CNIC, he did not have a smart national identity card (SNIC) and, under NADRA policy, would therefore be required to apply for the card in person in his home region in Parachinar. The applicant provided an expert report from a lawyer based in Lahore, Mr Waheed Ahmad, about the requirements for obtaining a SNIC and his opinion about the conditions for Shi’a minorities in Pakistan, the current role of the TTP and the ability of the State to provide protection in relation to politically motivated or sectarian violence. According to the statement provided, Mr Ahmad is a lawyer with 20 years’ experience in civil, family, criminal, human rights and constitutional law in Pakistan. He has held a number of senior positions within the Pakistan legal system and is currently Chair of the International Peace and Democracy Forum of Lahore, High Court Bar Association. I decided not to schedule a further hearing to take evidence from Mr Ahmad because, on the face of it, I accept his expertise as a legal expert in Pakistan and accept his expert opinion in relation to the requirements for a SNIC. However, insofar as Mr Ahmad purports to opine on country information relating to the TTP and Shi’a minorities, I give his statements on these matters limited weight. His statements are general and reference other sources. There is insufficient evidence about whether Mr Ahmad is a recognised expert in this field, although it is clear he has worked in human rights related legal issues for many years. As such, I give greater weight to other more authoritative sources and reports on these matters, some of which were provided by the applicant or his lawyer in subsequent submissions.

17. I have reviewed the further evidence provided, the articles attached and referred to in the applicant’s evidence and in the submissions from his representatives. My analysis and conclusions in relation to the matters raised, including the country information, are set out below.

    COUNTRY INFORMATION

18. DFAT has published a report dated 20 February 2019 (DFAT Report), which is now over two years old. Set out below is an outline of the findings in that report that are generally relevant or provide background to the applicant’s claims.

19. Pakistan emerged as a Muslim majority state as a result of partition of the Indian subcontinent in August 1947. Since partition, there have been continuing disputes between Pakistan and India in relation to disputed territory and they have fought three wars, including the Indo-Pakistani war of 1971, which resulted in the separation of Bangladesh.[20]

    [20] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019 [2.1].

20. Pakistan is bordered by Iran to the west, Afghanistan to the north-west, China to the north-east, India to the south-east and the Arabian Sea to the south. It has four provinces. Abbottabad is in the province of Khyber Pakhtunkhwa, about 120km north of Islamabad, which is the capital of the province of Punjab.

1. Pakistan is a democracy and it is currently governed by the Pakistan Tehreek-e-Insaf (PTI) led by former cricketer, Imran Khan, who is the Prime Minister. The President is Dr Arif Alvi, and this is primarily a ceremonial position.

2. DFAT assesses that the lack of economic opportunity is a significant push factor for internal migration to urban centres and for external migration.[21]

   [21] Ibid [2.17].

3. DFAT also notes that:

   Protracted terrorism, vulnerability to natural and human disasters, ethnic and religious tensions, periodic and military interruptions of civilian life undermine stability serve as significant push factors for both internal and relocation and external migration.[22]

   [22] Ibid [2.3].

4. Corruption is said to be widespread and systemic in Pakistan and bribery is said to be prevalent in law enforcement, procurement and provision of public services.[23]

   [23] Ibid [2.18] and [2.19].

5. Pakistan was elected to the UN Human Rights Council in October 2017 for a three-year term and has ratified most international human rights instruments. In May 2015 the government established the National Commission for Human Rights (NCHR) which works independently of government and is directly accountable to the Parliament.[24]

   [24] Ibid [2.56] and [2.58].

6. According to DFAT, the security situation in the area is “complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Afghanistan”.[25]

   [25] Ibid [2.66].

7. DFAT notes that there was a 29% decline in the number of reported terrorist attacks in 2018, compared with the previous year, marking a nine-year downward trend. However, DFAT also notes that Pakistan nevertheless “continues to face security threats from insurgent, separatists and sectarian militant groups”.[26]

   [26] Ibid [2.67].

8. In its report, DFAT states as follows:

   2.69.     The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).

   …………….

   2.70.     Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218).

   ……………

   2.72.     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. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.

9. According to DFAT, despite disruption efforts by the government, the TTP and its affiliated networks remain the greatest security threat to Pakistan with the highest overall number of attacks in 2018. The TTP is the largest banned group in Pakistan and is an umbrella organisation for predominantly Pashtun Sunni militant groups.[27]

   [27] DFAT Report [2.84].

10. DFAT notes that Pashtuns, who are predominantly Sunni but not exclusively, comprise an estimated 15.4% of the population of Pakistan, making them the second largest ethnic group in the country after Punjabis. Pashtuns are identified by their use of the Pashto language and its many dialects. It is further noted that Pashtun culture emphasises tribal and family relations.[28] According to DFAT:

    Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, and a high concentration of military operations. However, the overall security situation for all Pakistanis, including Pashtuns, has improved in line with increased security across Pakistan.[29]

    [28] Ibid [3.4] and [3.5].

    [29] Ibid [3.7].

11. DFAT reports that it assesses:

    ….. Pashtuns face a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab. Pashtuns in Pashtun majority areas or locations where individuals have family or social connections face a low risk of official discrimination. Pashtuns who are not Turis, or are not linked to the ANP, face a similar risk of violence as other ethnic groups in Pakistan in the same locations (for risk assessments specific to Turis Shi’a Pashtuns and Pashtun ANP supporters, see Turis and Awami National Party (ANP)).[30]

    [30] DFAT Report [3.12].

12. Relevantly, DFAT reports on Turis as follows:

    3.13.     The Turi tribe is a Shi’a Pashtun tribe of around 500,000 people. Turis are not generally distinguishable from other Pashtuns by appearance, but are identifiable by tribal names, accents, and residency in known Turi areas. Most Turis live in Parachinar, lower and upper Kurram Agency, Orakzai, DI Khan, Kohat, and Hangu. Concentration of Turis in small geographic areas, particularly in and around Parachinar and Kurram Agency, renders Turi communities vulnerable to attack.

    3.14.     The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a—especially in Parachinar, rendering Turis and other Shi’a 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 Shi’a faith (see Shi’a). Militants frequently stopped and killed Turis travelling on roads. A significant spike in profiling and targeted killings occurred between 2009 and 2014 along the Tall-Parachinar road, which links Kurram Agency and Peshawar.[31]

    [31] Ibid [3.13] and [3.14].

13. DFAT reports that deaths from terrorist attacks in Kurram Agency significantly increased in 2017 and that it was aware of three attacks targeting Turis in Parachinar during the first six months of 2017 on the grounds of their Shi’a faith. Three attacks in this period killed more than 120 people. It is further noted that while various military operations during 2018 improved the security situation in Parachinar and Kurram Agency, they have also restricted freedom of movement and limited community access to essential services. It is noted that military operations have displaced many Turis.[32]

    [32] Ibid [3.15] and [3.17].

14. According to DFAT:

    3.19.     While minorities feel more protected, according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence (see Shi'a) and greater presence of the Taliban and Al Qaeda. Turis face some risk of violence while travelling by road to Iran and Iraq on religious pilgrimage, although DFAT understands the government provides security assistance for such journeys (see Shi’a). Turis also express concern that the civil war in Syria was spilling over into Kurram and that ISIL, based in Nangarhar, is getting stronger.

    3.20.     Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes.[33]

    [33] Ibid [3.19] and [3.20].

15. In summary, DFAT reports that “global Turi Shi’a networks and donation systems can assist Turis to relocate to other cities in Pakistan”, such as Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi[34] but also notes as follows:

    3.24.     DFAT assesses that Turis a face similar risk of official discrimination as other Pashtuns based on ethnicity (see Pashtuns), and no additional risk of official discrimination based on their religion (see Shi’a).

    3.25.     Turis tend to live in enclaves with other Turis, mitigating societal discrimination. Outside these areas, Turis face a moderate risk of societal discrimination based on their Shi’a religion (see Shi’a) and historical animosity with the Bangash tribe.

    3.26.     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 Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.[35]

    [34] Ibid [3.21].

    [35] DFAT Report [3.24] – [3.36].

16. It is reported by DFAT that the provisional results of the 2017 national consensus recorded that Muslims comprise 96.28% of the population, of whom approximately 85% to 90% are Sunnis and 10% to 15% are Shi’a. DFAT reports that “sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools” and that Shi’a continue to face threats from anti-Shi’a militants and groups, including certain factions of the TTP.[36] DFAT also assesses that there is “a trend of increased religious conservatism and intolerance towards religious minorities in Pakistan, which is likely to continue in 2019” and that most religious minorities face “a moderate risk of societal discrimination and violence targeting religious ceremonies and places of worship”.[37]

    [36] Ibid [3.99].

    [37] Ibid [3.80].

17. DFAT assesses that most Shi’a in Pakistan face a “low level of sectarian violence”, although “high-profile Shi’a face a moderate risk of violence as they are more likely to be targeted”.[38] DFAT also reports that “[d]espite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal”[39] and:

    3.111.   DFAT assesses that Shi’a 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.[40]

    [Emphasis added]

    [38] Ibid [3.104].

    [39] Ibid [3.110].

    [40] Ibid [3.111].

18. On the issue of state protection, DFAT assesses that “state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will”.[41] Relevant to the claims made by the applicant and his representatives, DFAT reports:

    5.2.     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. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.[42]

    [41] Ibid [5.1].

    [42] Ibid [5.2].

19. Prior to and after the hearing, the applicant and his representative provided extensive country information comprising online media reports and other reports from independent organisations, including advocacy organisations, with varying degrees of reliability, which can be summarised as follows: [43]

    [43] Attachments to the applicant’s statement dated 20 November 2020, attachments to the submissions dated 24 November 2020 and attachments to the submissions dated 14 December 2020 and 10 and 19 March 2021.

    (1)An article from the Global Centre for the Responsibility to Protect dated 28 August 2019, noted that sectarian attacks against civilians was a growing threat, particularly for minority Shi’a communities;

    (2)In the Outlook online article dated 7 May 2020, the Human Rights Commission of Pakistan in its latest report commenting the status of human rights is said to have observed that sectarianism in Pakistan was increasing because of the narrow “Sunni majoritarianism”;

    (3)On 10 June 2020, the US Department of State in its annual report in relation to religious freedom noted that armed sectarian groups connected to organisations banned by the government as extremists continued to stage attacks targeting Shi’a Muslims;

    (4)A newspaper article on 24 July 2020, in the Voice PK, referred to bombing in Parachinar including concerns claimed to be expressed by a local that TTP militants had returned to the area from neighbouring Afghanistan and that violent incidents had increased in recent months;

    (5)There are a number of online articles in June and September 2020 about the “surge of sectarian violence targeting Shi’as”, the suggestion that the government’s silence may be strategic, namely that the Pakistani government was either unable or unwilling to protect Shi’a in Pakistan and even complicit and the growing move against Shi’as, who were increasingly becoming targets of persecution through hate speech and blasphemy allegations and were being referred to as “infidels”;[44]

    (6)The Pakistan Security Situation Country of Origin Information Report from EASO dated October 2020 noted that militant groups have continuously targeted religious minorities in Pakistan throughout the years, including Shi’as, that the Inter-Security Intelligence agency of Pakistan reportedly has close ties with a number of extremist Islamist groups, that the Pakistani police force was underfunded and is perceived as “inefficient, corrupt, brutal, unprofessional and politicised” and that the TTP remains a threat to security, mainly in north-western Khyber Pakhtunkhwa province and the Punjab province;[45]

    (7)Media reports in July 2019 and between May and December 2020 relate to a young Shi’a man who was detained by armed men and has since gone missing; a Shi’a activist who was known to be critical of Pakistan’s military establishment was taken away and held for 14 months; members of a Shi’a procession were attacked in May 2020; there have been bomb blasts and attacks in Parachinar; reports of anti-Shi’a sentiment in the Sunni majority of Pakistan; reports of a Shi’a mourner who had been forcibly taken away while travelling to Peshawar; a report about the return of militancy in Pakistan; and reports about the killing of a bank manager shot dead in Islamabad and an engineer murdered in a terrorist attack in North Wazirastan;[46]

    (8)Media reports provided by the applicant for September 2020 headed The Shi’as of Pakistan face a rising wave of sectarianism, Pakistani Shi’as living in terror as sectarian violence increases, The changing landscape of anti-Shi’a politics in Pakistan, What role does the State play in Pakistan’s anti-Shi’a hysteria?, Targeted attacks on Shi’as continuing in Pak as bank manager shot dead in Islamabad, ‘Kafir Kafir Shi’a Kafir’:Sunni extremists of Sipah Sahaba lead anti- Shi’a protests in Karachi, pelt stones and Four ISIS terrorists killed in Pakistan’s Punjab province;[47]

    (9)Recent media articles from January to March 2021 reporting on increasing militant and sectarian violence in Pakistan, the reunification of various splinters of the TTP and the passive and possibly condoning attitude of the Pakistani government towards militant religious groups and the resurgence, in recent months, of the TTP in the provinces bordering Afghanistan, namely the provinces of Khyber Pakhtunkhwa and Balochistan.[48]

    (10)Media reports relating to bombings in Parachinar on 22 June and 24 July 2020 claimed to be by TTP militants and a targeted attack on three villages in the Kurram district on 22 May 2020.[49]

    [44] Attachments 5 to 9, 11 and 12 to submission dated 24 November 2020.

    [45] EASO is an agency created by the European Union. The applicant’s representative provided extracts of the report at pp 21, 25, 27 and 29.

    [46] Refer attachments 1 to 20 in the submission of 14 December 2020.

    [47] Attachments 14 to 22 the statement of the applicant dated 20 November 2020.

    [48] Refer submissions of 10 and 19 March 2021.

    [49] Refer to attachment 4 to the submissions of 24 November 2020 and attachments five, six and 7 to the submissions of 14 December 2020.

20. These media reports are generally consistent with the findings of DFAT about sectarian violence in Pakistan and the targeting of Shi’a minorities in certain regions. However, the DFAT report is now two years old and it is difficult to draw conclusions from a series of media reports about individual incidents without the benefit of deeper analysis and ‘on the ground’ research as is usual in the preparation a DFAT report. For instance, according to the Center for Research & Security Studies, CRSS Annual Security Report 2020 (CRSS Annual Security Report 2020),[50] there were 122 fatalities from terror attacks and counter terror operations in Khyber Pakhtunkhwa in 2020, which represented a decline of 17.57% over the previous year.[51] This does not suggest that militant and sectarian violence in Pakistan is increasing, as submitted by the applicant.  The report also notes that a large number of militants, insurgents and criminals were arrested in 2020, with most of the militants arrested belonging to the TTP.[52] It is noted that “target killings” were a major cause of fatalities from violence in 2020. Civilians and security personnel accounted for 67% of the total fatalities during 2020, with civilians targeted in ‘various different settings’, including tribal elders and football players.[53] As such, examining media reports in isolation without more detailed in-depth analysis, may over-simplify the country information about prevailing conditions in Pakistan.

    [50] Center for Research & Security Studies, CRSS Annual Security Report 2020.

    [51] Ibid, pages.4-5.

    [52] Ibid, pages.11, 26 TTP militants of 49 militants arrested.

    [53] Ibid, p.14-15.

21. By letters dated 29 and 30 March 2021, I referred the applicant to country information and requested any further submissions on whether the applicant had a well-founded fear of persecution that related to all areas in Pakistan, given that he had previously resided in Islamabad and Rawalpindi, or, whether in the alternative, it would be reasonable for him to relocate to those cities for the purposes of consideration of whether Australia owed protection obligations to him under the complementary protection criterion.

22. The applicant was referred to the Thematic Report from DFAT headed Shi’as in Pakistan dated 15 January 2016 and the Country of Origin Information Report relating to the Pakistan security situation from EASO dated 20 October 2020.

23. The DFAT Thematic Report stated as follows:

    4.1       Islamabad remains relatively safe for migrant Shia communities. According to the Turi community, for example, there has only been one attack on Turi migrants in Islamabad in the past four years: on 10 August 2013, there was an attempted suicide IED attack on a Shia imambargah in Bahra Kahu. The suicide bomber – from Punjab – was killed by guards at the imambargah while the other four perpetrators – from Sadda, Kurram Agency – were prosecuted in an anti-terrorism court in September 2015.

    4.22     Some Turi migrants in Islamabad have reportedly received unspecified threats from sectarian elements. According to Islamabad-based think tanks, there is a declining incidence of kidnapping for ransom incidents in Islamabad. Kidnappers have historically targeted Ahmadis and, to a lesser extent, wealthy migrants from tribal areas.[54]

    [54] DFAT Thematic Report: Shias in Pakistan dated 15 January 2016, page 11.

107.   While the evidence before me about whether the applicant would be required to obtain a SNIC immediately is unclear (and Mr Ahmad does not opine on this issue), there is a strong possibility that the applicant will need to replace his CNIC with a SNIC at the time of renewal. Relevantly, there are numerous reports about the fact that CNICs are being “phased out” and DFAT reported that this was to be completed by 2020.  It appears that this has not happened because there are still references to CNICs on the NADRA website. Despite this, there is a strong possibility the applicant will have to attend upon the NADRA office in Parachinar either on his return to Pakistan or within the next year to obtain a SNIC. It is also relevant to note that, according to NADRA, there are important advantages to the SNIC, as recorded on its website, as follows:

…the smart identity card is the foundation of the delivery of electronic government services. In future, smart identity card holders will be able to enjoy various kinds of public services simply by going on-line at home or making use of smart identity card readers without having to visit government offices in person.[72]

[72]  These advantages may not be characterised as “essential” but they are significant and are consistent with the notion that the CNIC will be phased out and that Pakistani citizens will be required for all practical purposes to obtain a SNIC.

109.   I accept the applicant’s explanation as to why he delayed making his application for protection. His evidence is both plausible and consistent in this regard. As already noted, I accept the applicant has a subjective fear of harm in returning to Pakistan. While it is not germane to my decision because I must form a view about whether the applicant has a subjective fear at the time of my decision, I also accept that he had this fear at the time he made the application for protection.

110.   The determinative issue for me is whether those fears also have an objective basis, namely, are they well-founded. This question must be assessed at the time I make my decision and it is relevantly informed by country information about the prevailing conditions in Pakistan having regard to the facts that I have accepted about the applicant’s circumstances. If I am not satisfied about this, I must then consider whether the applicant meets the alternative complementary protection criterion. Both criteria involve a forward-looking approach which require an assessment of what may happen in the reasonably foreseeable future.

CONSIDERATION

111.   The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or, in the alternative, under the complementary protection provisions.

112. A person will be a refugee if he or she has a well-founded fear of persecution and is unable or unwilling to avail himself or herself of protection in the country of their nationality. The fear of persecution must have the relevant nexus with the matters enumerated in s.5J of the Act to be a well-founded fear of persecution within the meaning of the section. Those matters are based on the grounds set out in the Refugee Convention, which has now been codified under the Act. A person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and there is a real chance the person would be persecuted for one or more of those reasons if they return to their country of origin and the real chance relates to all areas of that country. The reason must be the essential and significant reason (or reasons) for the persecution and the persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm may include significant physical harassment or threats. Systematic and discriminatory conduct includes conduct which is deliberate and is directed towards a person because of something perceived about the person or attributed to them by their persecutors. A person may be persecuted by the State and its agents as well as non-state actors, when the State is unwilling or powerless to prevent the persecution.[73]

[73] Applicant A v MIEA (1997) 190 CLR 225 and MIMA v Respondent S152/2003 (2004) 222 CLR 1.

113.   I am satisfied the applicant fears persecution if he returns to Pakistan and that this fear arises by reason of his Shi’a religion, his Turi and Pashtun ethnicity, his family association and the fact that he is educated and has lived in Australia for many years. The applicant submits, and I accept he subjectively fears, these are matters that would be likely to bring him to the attention of militant extremists.

114. Having had the opportunity of hearing the applicant’s evidence about his fears and the events he was exposed to in his youth, I am satisfied that his fear of returning to Pakistan is genuine and strongly held. The basis for his fear has the relevant nexus for the purposes of the refugee criterion and are based on three of the matters enumerated in s.5J of the Act, namely race or ethnicity, religion and membership of a particular social group, being his family. The applicant fears he will be threatened and physically harmed by militant extremists. At the heart of the applicant’s concerns are his fears he will be targeted, or at least identified as a potential target, by militant extremists and physically harmed, killed or kidnapped because of his profile as a young Shi’a, Pashtun man from the Turi tribe with high profile family connections, who is western educated and would present as such. There can be little dispute that the harm feared would be serious and, given the claim of deliberate targeting, would also be characterised as being systematic and discriminatory. The applicant is also concerned he will not be protected by the state authorities.

115.   The critical issue in this case is whether the applicant’s fear is well-founded for the purposes of the definition in s.5J of the Act. Relevantly, the question is whether there is a real chance the applicant will be persecuted for one or more of the reasons enumerated in the refugee criterion if he returns to Pakistan and, if so, whether this relates to all areas of Pakistan. As already noted, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility and must be assessed into the reasonably foreseeable future, not simply at the time of the decision.[74] While it is relevant to consider past events in determining what may happen in the future, making an informed determination about these matters is inevitably difficult, particularly when the security situation in a country is volatile.

[74] AIE15 v Minister for Immigration and Anor [2018] FCA 610 per Perry J at [26] to [28] referring to SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559.

116. The applicant is Pashtun from the Turi tribe and he is a practicing Shi’a Muslim. He has a family association with his father and uncle, who themselves have a profile in the Parachinar region as Turi elders and members of the local Jirga, and his hometown is a small village close to Parachinar. As noted, I accept that the applicant would be likely to continue to support pro-Shi’a protests and activities if he returned to Pakistan. Insofar as the applicant claims fear of harm through his family connections, I am satisfied that this would have a relevant connection to the refugee grounds enumerated in s. 5J(1)(a) because the applicant is a member of a particular social group through his family connection, which, in the circumstances of this case, falls within s. 5K of the Act .[75] I also note that Turis have faced significant violence in the region in the past and there is evidence that groups such as the TTP have targeted Turis for their Shi’a faith. Notably, there is evidence of recent violence in the province of Khyber Pakhtunkhwa and there are reports of attacks in Parachinar targeted at Shi’as and tribal villages in the Kurram district in May, June and July 2020.

[75] Section 5K provides that in determining whether a person has a well-founded fear of persecution for the reason of the membership of a particular social group that consists of the that person's family, any fear of persecution should be disregarded where the reasons for the feared persecution is not a reason mentioned in subs 5J(1)(a).

117. The applicant is highly educated and has lived in Australia for many years. While I do not consider these to be characteristics on their own that would enliven protection obligations, I accept that these factors, together with the applicant’s religious, ethnic and family associations, are more likely to bring him to the attention of militant extremists if he returned to the Khyber Pakhtunkhwa region. As such, I am satisfied that the applicant’s fear of persecution is for one or more of the reasons enumerated in s. 5J(1)(a) and that the reason, or those reasons in combination, are the essential and significant reasons for the persecution.[76] For completeness, I note that I have not formed the view, nor do I understand this to be claimed, that the applicant’s fear of persecution is based on being a highly educated Western returnee (which is itself a particular social group) but rather that these are factors he fears may draw attention to him and heighten his risk having regard to his other characteristics and background, which relevantly fall within the refugee grounds enumerated in s. 5J(1)(a). I am also satisfied that the fear of persecution would involve serious harm to the applicant and that it would be systemic and discriminatory.[77]

[76] Refer s.5J(4)(a) of the Act.

[77] Refer ss.5J(4)(b) and (c) of the Act.

118.   I am therefore satisfied that the applicant faces a real chance of serious harm, and therefore persecution, if he returns to his hometown of [village] and that this fear is well-founded. According to the applicant’s evidence, and there is no reason to reject this evidence, his brothers live overseas and only his mother, father and sisters live in his hometown. The fact that his family has not experienced targeted attacks since 2015 or in recent months does not exclude the possibility that they, and the applicant if he returns to live with them, may face such attacks in the future. The applicant’s father is an elder in the region which is predominantly Shi’a and this may provide the applicant’s family with some level of protection. However, there is evidence that travelling in and around the Kurram district poses risks. Living among family members and with other Turi tribe families may assist in mitigating any risk the applicant may face from attacks by militants but it is likely that the applicant will need to travel in the region to find work and this would expose him to the potential for risk of harm. It is also likely that he will need to travel to Parachinar to obtain his SNIC. In my view, such a risk of harm is not remote or speculative given the current available country information and the applicant’s particular circumstances.

119.   However, this is not enough to establish a well-founded fear of persecution. The fear of persecution must relate to all areas of Pakistan (refer s. 5J(1)(c) of the Act).

120.   As such, the question is whether there would be a real chance of persecution if the applicant relocated outside the Parachinar region to, for instance, larger cities, such as Islamabad, Rawalpindi or some other major city in Pakistan where he may be likely to find work. There is country information to the effect that there are a significant number of ethnic minorities residing in Islamabad where there have been few reported incidents of attacks and violence in recent years.

121.   The applicant, and those who represent him, raise two contentions that are said to weigh against this.

122.   First, it is submitted that the Tribunal should not adopt a “safety in numbers” approach and that the applicant’s particular circumstances must be considered in assessing whether there is a real chance of persecution.[78] It is further submitted that there is recent evidence of attacks by militant extremists in capital cities and, as reported by the Times of Islamabad on 8 March 2021, the Minister for Interior, Sheikh Rasheed is reported to have said that “Karachi and Islamabad are under terror threats”.[79] As such, and given the applicant’s profile and background, it is submitted there is a real chance he will be targeted.

[78] Refer SZSSM v Minister for Immigration [2013] FCCA 1489 and MZAKC v Minister for Immigration [2016] FCCA 834.

[79] Refer attachment 26 to the submissions of 16 April 2021.

123.   Secondly, the applicant submits that he will still face a real chance of persecution because he is Pashtun, he will face discrimination and it will be difficult for him without his family and tribal supports and culture to fall back on. Relevantly, there is country information that Turis face difficulties in getting access to adequate services because of ethnic and religious profiling. Such discrimination may fall within the definition of serious harm if it was significant. It is also submitted that the applicant will need to return to his home region to obtain his identity card. If this is the case, he will need to travel into the region, and he contends there may be a risk of harm to him from attacks by militant extremists while he is travelling on the road and around the Kurram district.

124.   I accept there are concerns about the applicant returning to live in the Khyber Pakhtunkhwa region and that there is substance to those concerns. I also accept there is evidence of growing sentiment against the Shi’a community. However, this does not on its own translate to a real chance of serious harm for all Shi’a in all areas of Pakistan. Pakistan is the sixth most populous country in the world, with over 207.7 million.[80] Close to 97 per cent of the population are Muslim and between 10 and 15 per cent are Shi’a (or approximately 20 to 30 million).[81] Pashtuns are the second largest ethnic group (at 15.4 per cent, or approximately 32 million).  According to DFAT, internal migration in Pakistan is “widespread and common” and “[l]arge urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors”.[82] I accept the applicant’s submission that I should not simply approach my assessment by reference to statistical analysis. However, the fact that there are major cities in Pakistan that have large diverse populations where there are limited reports of attacks and sectarian violence is relevant to the question of whether I am satisfied the applicant will face a real chance of serious harm in all areas of Pakistan. If there are any locations in Pakistan to which the applicant could relocate where he would not face a real chance of serious harm, the applicant would not be able to establish he has a well-founded fear of persecution for the purposes of s. 5J(1), relevantly subsection (c).

[80] DFAT Report [2.7].

[81] Ibid [3.72].

[82] Ibid [5.32].

125.   I must have regard to the circumstances of the applicant in making an assessment about this issue. I am not satisfied that the applicant has, or would have, a high profile on his return to Pakistan outside his hometown or outside the Khyber Pakhtunkhwa region such that he would be targeted by non-state actors in a large city such as Islamabad.

126.   However, as observed by the Full Court in FCS17 v Minister of Home Affairs, the reference to all areas means where there is “safe human habitation and to which safe access is lawfully possible” and that “areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country.” [83]

[83] FCS17 v Minister of Home Affairs [202] FCAFC 68 at [77] and [81].

127.   Notably, the Court also observed:

In order to determine the outcome in the present appeals, it is not necessary to consider the extent to which a requirement that the real chance of persecution must relate to all safe, humanly habitable areas of a receiving country to which safe access is lawfully possible leads to outcomes in particular cases that are different to the 'viable or realistic alternative' relocation requirement approved in Januzi and CRI026.[84]

[84] Ibid at [82].

128. Given these observations, it is apparent that the nature and extent of s. 5J(1)(c) is still an open question that may be the subject of further judicial scrutiny, including the issue of what “safe access” contemplates. Accordingly, an issue that arises in this case is whether returning to and remaining in Islamabad, or any other location in Pakistan, is dependent on the applicant being able to obtain a SNIC and thus whether this, in the applicant’s circumstances, has the effect of precluding the applicant from safely relocating and living outside the Parachinar region. In other words, I have found that the applicant faces a real chance of serious harm if he returns to his home region near Parachinar and it would seem illogical to find that he does not face such harm in other areas of Pakistan if he is nonetheless required to return to Parachinar.

129.   There is no dispute that having a CNIC is important for the applicant to access employment and other essential services. The applicant has a CNIC but, as already noted, there is a real question about whether he may need to replace this with a SNIC, either immediately on his return or within the next 12 months. On balance, I am prepared to give the applicant the benefit of the doubt on this question because the issue of whether he may need to return to Parachinar in the reasonably foreseeable future is potentially a matter of great significance to his claim to fear persecution on his return.[85]  

[85] See MIMA v Rajalingam (1999) 93 FCR 220.

130.   In brief, I am satisfied that the applicant will have to apply for a SNIC at some stage because he does not have one. If the applicant cannot access employment and services in Islamabad (and other large cities in Pakistan) because he does not have the appropriate identity documents, he will not be able to subsist in those areas. Based on the available evidence, it appears that the applicant he has no close family or connections outside his home area. While the Court in FCS17 considered that an area that was inhospitable or where a person was unlikely to find food, shelter or work would not fall within the meaning of “all areas” of the receiving country for the purposes of s. 5J(1)(c), there is an argument that this reasoning could extend to circumstances where a person could not subsist in that location, consistent with the notion of “serious harm” set out in ss.5J(5)(e) and (f) of the Act.

131.   I have found that there is at the least a strong possibility the applicant will need to return to his home region, being Parachinar, to apply for and obtain an SNIC. It is unclear how long he would have to stay in Parachinar. For instance, would the applicant be able to obtain the SNIC over the counter after providing the necessary documents? Would he have to wait in Parachinar while his application was being processed or would he have to wait for a longer period, in which case it is likely he would return to his hometown for short period while waiting for the card. Alternatively, would he have to later return to Parachinar, or would the card be sent to him in Islamabad? These are matters on which I am unable to form any concluded view on the available country information. In these circumstances, and already noted given the seriousness of the issue, I am inclined to take a cautious but beneficial approach. At best, the applicant may be able to travel to Parachinar in a day and obtain the SNIC over the counter that day. At worst, he may have to return or may have to stay in his home village for a period while he is waiting for his application to be processed. Either way, the applicant would be required to travel around the Khyber Pakhtunkhwa region and would thereby be exposed to a heightened level of risk. As such, I find there is a chance the applicant will face serious harm while undertaking this process and that this chance is not remote or speculative, but real.

132. Section 5J(3) provides that 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 the receiving country. There may be an argument that the applicant does not need to return to Parachinar and thereby expose himself to unnecessary potential risks. The subsection sets out specific modifications that would not be expected or required for the purposes of avoiding for a real chance of persecution in the receiving country. Broadly speaking, those matters relate to the fundamental characteristics or identity of the person, not potential behaviours that may exacerbate or expose an applicant to greater risks. Despite this, it is apparent that s. 5J(3) is directed to ensuring that an applicant takes reasonable steps to avoid persecution. Having regard to my previous findings about the importance of a SNIC, it follows that I am not satisfied subsection (3) would oblige the applicant to refuse to avail himself of the opportunity to obtain a SNIC simply to avoid potential risk.

133.    Accordingly, I am satisfied the applicant will face a real chance of serious harm, and therefore persecution, in all areas of Pakistan.

134. A person does not have a well-founded fear of persecution if ‘effective protection measures’ are available to the person in a receiving country. Section 5LA of the Act sets out the circumstances when effective protection measures are said to be available to a person in the receiving country. Firstly, it must be established that the relevant state could provide protection against persecution and that it is willing and able to offer such protection. Secondly, there is a deeming provision which provides that the relevant state is taken to be able to offer protection against persecution if the person can access the protection, the protection is durable and it consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

135.   Having regard to the country information about the security situation in Pakistan and the recent accounts of sectarian violence and militant extremist attacks in media reports provided by the applicant and his representative, I am not satisfied that there are effective protection measures in place in Pakistan available to the applicant in the circumstances of his case.

136. For the reasons given above, I am satisfied that the applicant meets the refugee criteria and is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

137. As such, I do not need to consider whether Australia has protection obligations under the alternative complementary grounds set out in s.36(2)(aa) of the Act. However, for completeness, I note that if I had not been satisfied that the criterion under s. 36(2)(a) was met because I could not be satisfied there was a real chance of persecution in all areas of Pakistan, I would have been nonetheless satisfied that the grounds for complementary protection were established. This is because I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk he will suffer significant harm. Those substantial grounds are based on my findings set out above. Section 36(2B)(a) provides that there is taken not to be a real risk if 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. In this case, it would not be reasonable to require the applicant to relocate to another city, such as, for instance, Islamabad even though he has previously lived there. Firstly, it would not be reasonable to require the applicant to move away from his family, particularly when there is evidence that it is important for Turis to live in a supported community environment or enclave. Secondly, there is evidence from DFAT that Turis face difficulties finding employment outside of Parachinar due to “ethnic and religious profiling” and they are “generally discriminated against in employment selection processes”.[86] Thirdly, there are the practical issues relating to the need for the applicant to return to Parachinar to obtain a SNIC, which itself raises further concerns about the applicant being exposed to a real risk of significant harm on his return to Parachinar.

[86] Refer DFAT Report at [3.20]

DECISION

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

J.L Redfern PSM
Deputy President

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.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…