1614254 (Refugee)

[2019] AATA 160

1614254 (Refugee) [2019] AATA 160 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614254

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Anne Grant

DATE:16 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2019 at 1:57pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – Shia Muslim – particular social group – successful Shia businessmen in Sialkot – Khatme-Nabuwaat – victim of assault and extortion – sectarian violence – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

MIMA v Respondents S152/2003 (2004) 222 CLR 1

SZATV v MIAC (2007) 233 CLR 18

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration 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 who claims to be a citizen of Pakistan applied for the visa on 3 September 2014 and the delegate refused to grant the visa on 24 August 2016.

3. The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. Although the applicant was represented in relation to the review by a registered migration [agent] from [Company 1], his representative had indicated prior to the hearing that the representative would not be attending the hearing of the review, and he did not attend.   The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant’s agent made written submissions.   

   RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

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

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

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

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him or her being removed from Australia to Pakistan, there is a real risk that he or she will suffer significant harm.

21. I am satisfied, based on the applicant’s evidence and his passport information, that he is a citizen of Pakistan, and his claims for protection have been assessed against Pakistan as his country of reference.  The information and evidence before me does not suggest that the applicant has any right to enter and reside in a third country and I find that he does not.

22. The applicant’s claims in his written and oral evidence are that he is unable to return to Pakistan because he fears that he will be seriously harmed by members of a Sunni group (Khatme-Nabuwaat)(KN) because of his religion as a Shia Muslim and because he is perceived to be a successful Shia businessman in Sialkot.   The applicant also claims to fear general discrimination from Sunni community members (including extremists) throughout Pakistan on the basis of his Shia faith. The applicant claims to have experienced anti-Shia sentiments and discrimination in his education and left school at an early age.  He also claims that he had difficulty finding work due to his Shia religious beliefs in the period from 2003 to 2005 when he searched for a job.  He then joined his father’s [business], where they manufactured [products].  Initially he worked as a [Occupation 1], then moved into [Occupation 2] and finally into [Occupation 3]. 

23. The information before me from the applicant reflects that the business was doing well, selling products within and outside Pakistan, but most of their business was in and around Sialkot.  The applicant claims that in 2013, he, his brother and his father started to receive anonymous telephone calls abusing them for being Shia and for running their business ‘without any contribution for their organisation.’  Initially, they didn’t know who these men were and resisted the demands, but then in October 2013 the applicant told them to come to the business to discuss their demands.  When they arrived, they introduced themselves as members of the KN group and said that they needed ‘donations’ from the business, saying that the applicant, his brother and his father had a run profitable business with their ‘Shia religion for some time and had never contributed’.  The applicant’s father told them to leave them alone, noting that they had every right to build a business like other people and shouldn’t be exploited due to being Shia. The group became angry and the applicant and his father were physically assaulted, in front of their staff.   After demanding at least [amount] rupees every month and threatening that if they did not pay, they would be forced to close the business, these men left.  The applicant and his father reported that assault to police only to be told that the people involved were ‘powerful and dangerous’ and that the police could not offer them protection.  The police actually recommended that they negotiate with the perpetrators. 

24. As a result of this police response, they then negotiated with the group members. The applicant and his father settled on the amount of [amount] Rupees per month (the equivalent of $[amount] AUD) with their extorters.  They paid the amount for around six months - but also decided to secretly scale back and possibly relocate the business to avoid the extortion.  The applicant claims that in May 2014, when they stopped paying due to financial hardship, he and his father were severely assaulted at their business and both hospitalised for [number] days.  The applicant said at hearing that they also reported these assaults to police but again received no assistance and were told ‘deal with it yourselves.’

25. On recovering, his father reached an arrangement with a Sunni employee whereby that man runs the business and sends money to the applicant’s father when he can.  This way he could avoid the extortion by KN who would not and have not extorted from a Sunni businessman.  The applicant’s evidence is that his father and mother moved to Hyderabad (in Sindh province) and his brother (also previously employed in the business) moved to a town near Mirpurkhas in Sindh province with his wife’s family.   His father is old and basically retired.   Their former employee sends his father money ‘when he can’.   His brother works on his in-laws’ farm.

26. The applicant claims that his wife and son also moved to a remoter part of Sialkot with her family.   The applicant gave evidence at hearing that his father, his brother and his wife have not had any problems or been further contacted by KN members since they ostensibly divested themselves of the business and relocated.

27. The applicant claims that, if he were to return to Sialkot, he fears that the KN members would find and harm him because he stopped paying them money.  He also claimed that they would find him wherever he went in Pakistan.  The applicant also claims, based on his earlier difficulties finding work as a young man, that he would be unable to find work due to his religion throughout Pakistan, and would be unable to earn sufficient money to support his family.  He also claims that Shia citizens of Pakistan are regularly assaulted and murdered throughout the country but such incidents are not reported, and that it is therefore dangerous for Shias everywhere in Pakistan.

28. At hearing, the applicant provided a letter from the President of the Shia Community in Sialkot confirming that he was currently living in Australia because of his persecution in Pakistan ‘by the main streem (sic) Sunni extremist group’  which I have also considered. 

29. The applicant arrived in Australia [in] August 2014 and lodged his claim for protection on 3 September 2014. 

30. The applicant’s agent, [Company 1], provided a submission to the Delegate which is contained on the Department’s file and which I have considered.  The applicant’s agent submitted that (in summary):  

    ·The applicant and his family members have a very long business history in Pakistan and the applicant’s family had been in [business] since 1985 in Sialkot and the applicant joined with him in October 2005.

    ·The applicant played his role as a [Occupation 4], [Occupation 2] and finally as [Occupation 3] in partnership with his father making it a more profitable and successful one. 

    ·The applicant’s father’s business had been ‘solvent’ facilitating the applicant travelling to [Country 1], [Country 2], [Country 3] even before he joined his father’s business in 2005.

    ·The religious fundamental group KN members noticed his substantially profitable business and made them target him and his business, taking advantage of their religious sect.  

    ·The applicant and his father were assaulted in their business badly as the ransom demanded by KN was not met. They reported it to police who did not take action because the offenders belong to the KN organisation and were too dangerous to deal with, and advised the applicant and his father to negotiate with them.

    ·They made arrangements to pay [amount] PKR per month and did so until May 2014. 

    ·As the business slowed down, staff were terminated and production cut down, they couldn’t make the payment.  They were attacked in their office, and admitted to a clinic where they were treated for a week or so.

    ·They then considered relocating but it was not feasible due to the ongoing risk of being pursued because of their religion.  Ultimately they made an arrangement with their Sunni manager who would still run the business on a smaller scale, claiming that he purchased it from the ‘previous Shia owner’. 

    ·His brother relocated to Mirkurkhas and the applicant’s father relocated to the outskirts of Sialkot.  His wife moved to her parents in [Village 1], also in Sialkot.

31. On the basis of the information and evidence before me, I accept that the applicant is a Shia Muslim and that he fears that, if he returns to Pakistan, he will be killed, assaulted or otherwise harmed by members of the KN group or by other anti-Shia extremist groups in Pakistan.  He also fears that he will be prevented from earning a living and generally discriminated against by Sunni community members because of his Shia faith.

32. As discussed with the applicant at hearing and noted by the delegate in his or her decision, country information (including general country information) discloses that KN is an anti-Ahmadi group which openly advocates discriminatory conduct and violence against the Ahmadi community in Pakistan.  UNHCR 2017 Guidelines on Religious Minorities in Pakistan cite the following reference:

    “Discrimination through the media is particularly acute against the Ahmadi community. Hate campaigns against Ahmadis have been carried out in an organized manner, through stickers placed on buses, wall chalking, and distribution of pamphlets. In Khatam e Nabuwat conferences taking place across Pakistan, clerics openly incite their followers to kill Ahmadis. This hate speech is often covered by the media, but the legitimacy of such statements is rarely questioned, nor is the perspective of the Ahmadis represented.” IFHR and the HRCP, Minorities Under Attack: Faith-Based Discrimination and Violence in Pakistan, 10 March 2015.

33. The country information suggests that the group is politically active and fundamentalist Muslim, pursuing perceived blasphemy and apostasy by Ahmadis.  As noted by the South Asia Terrorist Portal, KN was at the forefront of protests and engineered the resignation of the chief law minister in Pakistan over a change to the description of an oath to a declaration - on religious grounds: 

    Radicalized groups across Pakistan have received further encouragement from recent events, when the Federal Government bowed down before violent Islamist protesters. On October 2, 2017, the National Assembly passed the ‘Election Bill 2017’, making changes in the Khatm-e-Nabuwat [finality of Prophet-hood] clause of its earlier Bill. Soon after, countrywide protests led by the Tehreek-e-Labbaik ya Rasool Allah Pakistan (TLP), an Islamist party, erupted against the change. Other pro-Muslim parties, such as the Pakistan Sunni Tehreek and Tehreek-e-Khatme Nabuwwat (Movement for the Finality of Prophet-hood) also lent their support, demanding the resignation of Law Minister Zahid Hamid and the removal of the offending clause which, according to these groups undermined Islamic beliefs and amounted to blasphemy. Mounting pressure, the protestors began camping at Islamabad’s Faizabad Traffic Interchange from November 6, 2017. The Government restored the original clause on November 17, 2017, but the Islamists continued with their protest. Eventually, on November 25, 2017, bloody clashes took place just outside Islamabad in which at least six people were killed and another 200 were injured. Speaking from the site of the clashes, TLP 'spokesman' Ejaz Ashrafi declared, “We are in our thousands. We will not leave. We will fight until end.” Clashes also took place elsewhere in the country and continued on November 26 as well.

    On November 29, 2017, the Islamabad Police told Pakistan's Supreme Court that the November 25 clashes were primarily caused because "they had hurt the religious sentiments of security forces with their inflammatory speeches." A nine-page report submitted by the Islamabad Police stated that the protesters were religiously motivated and that their speeches were targeted at hurting religious sentiments of SFs keeping vigil. It also said that close to 2,000 protesters, mostly armed with stones, pistols, axes, and rods, were present at the protest site.

    The protests came to an end after the Army mediated between the protestors and the Government, and the Law Minister Zahid Hamid was forced to resign on November 27, 2017. Hamid stated, “The decision to resign was taken in a bid to steer the country out of the prevailing critical situation.” The resignation was part of an agreement reached between the Government and the protesters. [1]

    [1] type="1">

    The applicant’s evidence at hearing was wholly consistent with his written claims, (except that he updated the information about his father as having now moved to Hyderabad in Sindh Province) and he provided his responses to my questions without hesitation.  I consider that the general country information about Pakistan reflects that extortion is not uncommon in Pakistan, and on occasion leads to assaults, kidnapping and murder.  I also note that in 2018, an Ahmadi mosque in Sialkot was destroyed[2].  I consider this to suggest that it is plausible that KN are active in and around Sialkot, consistent with the applicant’s claims.   Despite the fact that KN is predominately focussed on anti-Ahmadi propaganda and agitation, I consider it is plausible that, as a hate based group, it would seek and enforce contributions (ie, extort) from groups within the community which it perceives to be ‘lesser’ Muslim groups, such as the Shia business community in Sialkot, in the manner described by the applicant.  I also accept that it is plausible that members of the organisation would resort to violence if their demands were not met. 

    [2] >

    I consider the applicant to be a generally truthful witness and I accept that his family business was targeted for extortion by Sialkot members of KN, and that (on the recommendation of police)  after being physically assaulted and intimidated by those people, they negotiated a monthly ‘contribution’ of [amount] Rupees to KN to avoid further harm.  I accept that the applicant and his father were physically assaulted on at least two occasions, and on the last that he and his father were seriously assaulted, resulting in hospitalisation.  This serious beating occurred because they had stopped paying the demanded contributions due to financial difficulties.  I observed at hearing and accept that this last assault, in particular, has had a profound effect on the applicant, who continues to hold an overwhelming fear that he will fall victim to such assaults again from that same or some other group if he returns to Pakistan.   

    The applicant fears being killed, assaulted, discriminated against and extorted by Sialkot members of militant Sunni group KN because of his Shia faith and because he was a successful Shia businessman in Sialkot.  He also fears that he will be subjected to targeted attacks by other anti-Shia extremists because of his faith if he returns to Pakistan.  He also fears that he will be discriminated against due to his Shia faith and will be unable to find suitable employment and earn sufficient income to support himself and his family in Pakistan.

    I am satisfied that the harm he fears (being killed, assaulted and extorted, and discriminated against to an extent where he is unable to find employment or to subsist) is serious harm.  I am satisfied that the essential and significant reasons for the persecution he fears are the convention grounds of his religion as a Shia and also (in relation to his fears of extortion) due to his membership of the particular social group of successful Shia businessmen in Sialkot.  The essential and significant reasons for the harm he fears are convention reasons.

    As I am required to do, I have had regard to DFAT’s Country Information Report, Pakistan (1 September 2017), discussed generally with the applicant at hearing, and note the following extracts from that report:

    3.33      The Shi’a population is spread throughout Pakistan. While Shi’a do not constitute a majority in any of Pakistan’s four provinces, Shi’a do form a majority in the Pakistani-controlled autonomous region of Gilgit- Baltistan. Significant numbers of Shi’a live in Peshawar, Kohat, Hangu and Dera Ismail Khan in Khyber Pakhtunkhwa; in Kurram and Orakzai Agencies in the Federally Administered Tribal Areas (FATA); in and around Quetta and the Makran coastline in Balochistan; in parts of southern and central Punjab; and throughout Sindh. Large Shi’a communities live in urban centres throughout Pakistan, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. Although some Shi’a live in enclaves in these cities, the Shi’a and Sunni communities are generally well integrated.

    3.34      Most Pakistani Shi’a are not physically or linguistically distinguishable from Pakistani Sunnis. The National Database and Registration Authority (NADRA) issues Computerised National Identity Cards (CNICs) that do not identify cardholders by their religion (although NADRA collects religious information during the application process). Passports contain information on the holder’s religion, but do not differentiate between Sunni and Shi’a Muslims.

    3.35    Some Shi’a may be identifiable by common Shi’a names such as Naqvi, Zaidi and Jafri, while Sunnis and Shi’a both use names such as Syed and Hussain. Similarly, ethnic and tribal names can reveal a person’s ethnicity or tribal affiliation; Hazaras and Turis are almost exclusively Shi’a, while the Bangash have a significant Shi’a population. A person’s address can identify them as Shi’a if they reside in a predominantly Shi’a area. Shi’a in Pakistan are most prominent during Shi’a religious events and pilgrimages to Iraq and Iran. Shi’a participating in Ashura processions during Moharram often administer forms of self-harm such as flagellation, which can leave permanent marks.

    3.36    Shi’a and Sunni mosques are clearly distinguishable, as they have visibly different exteriors and are identifiable by name. Shi’a mosques and places of worship, or imambargahs, feature different Muslim iconography, including the Shi’a sword, horses, images of Ali and Hussain, and ‘U-shaped’ crescent moons. Shi’a and Sunni mosques have different prayer times, and worshippers use different hand positions while praying. Shi’a mosques are located throughout Pakistan, including in major cities and towns. Shi’a can (although rarely do) pray in Sunni mosques and vice versa. Both sects share a number of famous religious sites, including Sufi shrines.

    Discrimination Against Shi’a

    3.38    Societal discrimination in Pakistan tends to manifest in the form of positive discrimination (nepotism, patronage, etc.) in favour of one’s own family, tribal or social group (though some minorities do suffer ongoing discrimination). However, some (typically low-level) anti-Shi’a discrimination does occur.

    3.39    Shi’a are represented in the professional community in Pakistan, including the medical and legal professions. There is no credible evidence of systemic discrimination against Shi’a in gaining admission to the public service, police, military or the private sector. However, there are perceptions of discrimination against Shi’a at higher levels of some organisations. DFAT notes that in remote areas and poorer cities such as Quetta employment opportunities are often limited regardless of ethnic or sectarian identity. Overall, DFAT assesses that Shi’a generally do not face significant levels of discrimination when seeking employment based on their religious affiliation.

    3.40 Sunni and Shi’a students attend the same public and private education institutions. Although the Constitution prohibits discrimination in granting admission to government schools, students must declare their religious affiliation when applying for entry into both public and private institutions, including universities. Islamic studies are compulsory for all Muslim students in state-run schools. Credible sources told DFAT that there are issues of religious bias in public education institutions in Pakistan. While this predominantly affects non-Muslim religious minorities, Shi’a groups also raised concerns over religious bias in the public school syllabus and proscribed textbooks. School textbooks contain depictions of Sunni prayer rituals, and omit prominent Shi’a figures from historical texts. Access to high-quality education is limited for some Pakistanis, regardless of religious affiliation, and depends primarily on an individual’s geographic location and financial resources. However, DFAT assesses that Shi’a can experience low-level discrimination because of religious bias in the public school syllabus and textbooks.

    3.41    Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. The Pakistan People’s Party (PPP) has had several high-profile Shi’a leaders, including Zulfikar Ali Bhutto, his daughter Benazir Bhutto, and Benazir Bhutto’s husband Asif Ali Zardari, all of whom served as Pakistan’s president and/or prime minister. Zardari and Benazir’s son, Bilawal, is the current leader of the PPP. Other major parties, including Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) and the Muttahida Qaumi Movement (MQM), also have significant Shi’a following. Sectarian-based political parties, such as the Sunni Deobandi Jamiat Ulema-e-Islami (F) party and the exclusively Shi’a Majlis-e-Wahdutul Muslimeen (MWM) party, have less support. DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation.

    Sectarian Violence

    3.42    Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools. Shi’a continue to face a threat from anti-Shi’a militant groups, including Lashkar-e Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP, also known as Ahl-e-Sunnat-Wal-Jamaat or ASWJ), and various factions of the Tehreek-e-Taliban Pakistan (the Pakistani Taliban, or TTP). Sectarian violence has reduced significantly in recent years, particularly since Operation Zarb-e-Azb (and its successor, Operation Radd ul Fasaad) and the NAP were implemented. According to the Center for Research and Security Studies (CRSS), fatalities from sectarian violence fell by 20 per cent in 2016, following a 28 per cent drop in 2015 and a 32 per cent drop in 2014.

    3.43    While sectarian violence affects people of all religions and sects, Shi’a have traditionally represented a higher proportion of the casualties. According to the CRSS, Shi’a made up around 60 per cent of the people killed in sectarian violence in Pakistan in 2015, despite making up only around 15-20 per cent of Pakistan’s population. In 2016, however, Shi’a made up fewer than 15 per cent of those killed in sectarian violence. The two biggest attacks of the year—an attack targeting Christians in Lahore on Easter Sunday and an attack on a Sufi Shrine in Balochistan— did not target Shi’a. This fact, combined with a significant decrease in overall sectarian violence across the country, meant that Shi’a comprised a relatively small proportion of the total victims of sectarian violence. Around 820 Shi’a have been killed in sectarian violence since the beginning of 2013, out of a total Pakistani Shi’a population of about 30 million people.

    3.44    LeJ and its sub-groups such as LeJ al-Alami tend to be the main perpetrators of violence against Shi’a in Pakistan. The LeJ is a collection of loosely coordinated cells linked to other militant groups such as the TTP and, more recently, Islamic State. Originally based in Punjab province as an offshoot of Sipah-e-Sahaba Pakistan (SSP), the LeJ’s reported objective is to establish an Islamist Sunni state in Pakistan. It also seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.

    3.45    The LeJ has claimed a number of attacks on the Shi’a community in recent years, particularly Hazaras in Quetta and other Shi’a groups in the Federally Administered Tribal Areas (FATA) and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a’. Several prominent LeJ militants were killed in 2015, including the group’s leader Malik Ishaq.  LeJ’s activities have been somewhat curtailed since the beginning of Operation Zarb-e-Azb and the NAP, although the group claimed to be involved (directly or indirectly) in several attacks in late 2016 and early 2017. These attacks include: an attack on a Sufi Shrine in Balochistan which killed 52 people in November 2016; an attack on a police training academy in Quetta, Balochistan, which killed 61 people in October 2016; an attack on a Shi’a religious gathering in Karachi which killed six people on 30 October 2016; and an attack on a market in Shi’a-dominated Parachinar in June 2017, which killed 72 people. Several of these attacks were claimed by LeJ al-Alami in conjunction with Islamic State. The Pakistan government designated the LeJ as a terrorist organisation in 2001.

    3.46    Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location (see assessments of Sectarian Violence by province, below) and for members of specific groups (see Hazaras and Turis, above). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure.

    DFAT in that same report then addresses the risk of Sectarian violence by province.  In Punjab, the applicant’s home state, DFAT assesses that sectarian and other religious violence does occur but that “While sectarian violence can occur in any part of Punjab province, including major cities, DFAT assesses that Shi’a in Lahore and Islamabad face a low risk of sectarian violence.”   The applicant disagreed with this assessment at hearing, and considered that the risk to Shias anywhere in Pakistan was not properly reflected as low, saying that lots of violence goes unreported. 

    DFAT assesses that the risk of sectarian-violence to Shias in Sindh, Khyber Pakhtunkhwa, FATA[3] and Balochistan provinces is also low, but this is in the context of a moderate level of overall violence in those areas.  In Balochistan, DFAT notes that Hazara Shias do face a higher risk than the general Shia population.  In, some parts of FATA, such as Kurram Agency, DFAT notes that the risk of sectarian violence is higher than in other parts of the FATA.   DFAT assesses that there is a very low level of sectarian violence in Gilgit Baltistan.

    [3] FATA is now part of Khyber Pakhtunkhwa province since 31 May 2018.  The country information necessarily shows a delineation between the two areas based on this historical distinction.

    In relation to State Protection, I note that DFAT reports that ‘Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited by resources shortages, personal socio-economic status and, in some cases, political will.’[4]  Additionally, ‘The effectiveness of individual police forces in Pakistan and the challenges faced by these forces vary. Overall, however, police capacity in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors and the judiciary. Credible sources in Pakistan told DFAT that there is a widespread perception across the community of high levels of police corruption.’[5]

    [4] DFAT Country Information Report Pakistan (1 September 2017)  at 5.1

    [5] As above, at 5.5

    Based on this country information, I find that law enforcement authorities in Pakistan are unable or unwilling to protect members of religious minorities including Shias, and that Sunni militant groups like KN and the Pakistan Taliban and other extremist organisations operate with relative impunity in targeting religious minorities, including in areas where State authority is well established.  In the applicant’s case, this is reinforced by his report of the local police response (which I accept) to his report of the incidents of targeted violence he experienced.

    I accept that, given the challenges facing Pakistan’s security divisions, the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Taking into account the country information and the applicant’s accepted experiences, I am satisfied and find that that the applicant faces a real chance of persecution for reasons of his religion and membership of the particular social group of successful Shia businessmen if he returns to his home area of Sialkot, now or in the reasonably foreseeable future.

    The applicant also fears being discriminated against and targeted outside his previous home area (and throughout Pakistan) by members of KN and other anti-Shia extremist groups and Sunni community members due to his Shia faith.    I consider that the country information referred to above and as discussed with the applicant at hearing reflects that anti-Shia sectarian violence does occur in other parts of Pakistan, and that it is higher in some parts of the country (such as Kurram Agency in the former FATA) than in others, due to the sectarian and tribal conflicts in the regions. However I accept DFAT’s assessment that Shia citizens in most parts of Pakistan, including the applicant’s home state of Punjab, have a low risk of being targeted due to their faith unless they have a prominent faith profile.   I do not accept the applicant’s assertion that acts of serious sectarian violence are occurring ‘everywhere’ without being reported, skewing the country information and increasing the risk to the applicant above the level of DFAT’s assessment.    

    The applicant’s evidence is that his persecutors have not contacted his father, his brother or his wife since they left the business and indeed since he left the country.   Nonetheless, he asserts that they will find him ‘wherever he goes’.  As discussed at hearing, KN is renowned as an anti-Ahmadi hate group and I do not accept that they have any interest in the applicant (who is not an Ahmadi) now that he is no longer operating a business in Sialkot from which they can extort.  

    I also note that, as accepted by the applicant at hearing, large Shia communities are located in cities like Lahore and Islamabad as well as in smaller cities throughout Pakistan’s provinces.  The applicant’s claims and evidence do not suggest he has any public profile within the Shia community – for example as a prominent faith leader or tribal elder, and I find that he does not.  I find that the applicant has no profile which would draw him to the attention of anti-Shia extremists or which would increase his risk of harm above that of other members of the Shia community outside of his home area.  He no longer has a profile as a successful Shia businessman.  If in the future he re-established himself outside Sialkot and again became successful, I consider that the risk of him being extorted in business is no higher than that faced by any other member of the Pakistan community generally.  I am not satisfied that his previous profile or involvement with KN would amplify his risk of being extorted in future beyond that of all members of the Pakistan business community if he were to reside outside of Sialkot.    I also consider that, based on his past experiences, if he returns to Pakistan, the applicant would and could continue to practice his Shia faith as he has throughout his life without being targeted for that practice.   There is nothing in his profile which would elevate his risk of harm in doing so.

    The applicant described low level discrimination during his younger life because of his religion, and I accept that was his experience, and that Shia citizens throughout Pakistan may face continuing low level discrimination in employment and other opportunities.  Nonetheless,  whilst I am satisfied that although there is a very localised and particular real chance that he will be discovered by KN members and seriously harmed again if he returned to Sialkot as found above, I am not satisfied that there is a real chance that the applicant will suffer serious harm in the form of being attacked, assaulted and killed by extremists or Sunni community members, or that he will face discrimination which prevents him from finding employment or earning a living, in other parts of Pakistan such as Islamabad, Lahore or Hyderabad because of his Shia faith or because of his being a successful Shia businessman.   I do not accept that the applicant has established that his persecutors retain any interest in harming him (given their lack of interest in him since departure) or in tracking him outside of Sialkot, and as I indicated to him at hearing, I do not accept that there is any risk that the Sialkot members of KN (or general members outside Sialkot) would seek, pursue or target him if he were in Pakistan. I am satisfied that if the applicant were to return to Pakistan and relocate outside of Sialkot, including for example in Lahore, Islamabad or Hyderabad, the chance that he would be persecuted by religious extremists, the Sunni community generally or by members of KN, would be remote.  I find that there is not a real chance that the applicant would be persecuted if he were to return to Pakistan and reside outside his former home region.

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

2. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan. The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant. It is submitted by the applicant that his persecutors will find and harm him throughout the country and also that it is not reasonable to expect him to relocate due to the difficulty he will encounter in making a living and the fear that he will be subjected to ongoing general discrimination in employment by Sunni citizens generally.  I have found that the applicant has not established that there is a real chance that the applicant will be persecuted because of his faith or because of his previous business profile if he were to return to Pakistan to an area outside his former home area.  The applicant argues that it is not reasonable for him to relocate anywhere within Pakistan.

3. Country information about relocation was discussed with the applicant at hearing.    According to DFAT’s report: 

   Options for internal relocation

   5.14    Large urban centres such as Karachi, Islamabad and Lahore tend to have ethnically- and religiously-diverse populations, and offer a level of anonymity for people seeking refuge from violence by non-state actors. However, groups such as the Ahmadis, who face significant levels of official discrimination, face similar issues in all parts of the country.

   5.15    Lahore has a population of around 10 million people. While it remains a majority-Punjabi city, there are significant numbers of some other ethnic groups, particularly Pashtuns. There are few Hazaras or Turis in Lahore. While security incidents can occur—such as the 2016 Easter Sunday attack—the security situation in Lahore tends to be better than other areas. Representatives of the Pashtun community told DFAT that Lahore was safer for Pashtuns than other parts of the country. Similarly, representatives of the Shi’a community told DFAT that Lahore and Islamabad were the safest parts of the country for Shi’a. Representatives of the Lahore Christian community told DFAT that the security situation has improved and that the government is genuine in its attempts to provide Christians with state protection, although some risks—particularly of communal violence and societal discrimination—remain.

   5.16    Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country. There is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare. Such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders.

   5.17    Karachi’s population is estimated at between 20-24 million people, making it Pakistan’s largest population centre. Security operations in Karachi have significantly reduced the level of militant and sectarian violence in recent years, although attacks are more frequent in Karachi than in Lahore or Islamabad. According to the SATP, around 250 people died in terrorism-related incidents in Karachi during 2016. This includes suspected militants killed in encounters with police. The relatively high number of casualties from insurgent, sectarian and criminal violence in Karachi is due in part to the city’s large population. A significant number of internal migrants live in poor conditions on the outskirts of the city. Credible sources told DFAT that Karachi is generally less safe for religious and ethnic minorities than other cities such as Lahore. However, some parts of Karachi are relatively safe, particularly in South Karachi (such as the more prosperous Clifton and Defence neighbourhoods).

4. The applicant did not accept that the risk of him suffering serious harm as a Shia anywhere in Pakistan was remote.  He asserted that he would not be safe anywhere in Pakistan due to his Shia faith.   I have found, however, that he does not face a real chance of serious harm if he were to return to Pakistan and live and work outside of Sialkot.  I turn now to considering whether the applicant could reasonably relocate in Pakistan to an area where he would not face a real chance of persecution.

5. I note that the applicant left school at a young age and initially had some difficulty finding work.  He has experience working in various parts of [the family business] including in [Occupation 2] and [Occupation 3].  He had 8 years of experience in that business.  He has also worked in [Occupation 5] in Australia. I consider that the applicant has valuable work experience and is not without the capacity to find and retain employment in other parts of Pakistan (such as Lahore or Islamabad) within Shia communities or Shia operated businesses throughout the country.  Whilst he referred to his difficulties finding work as a younger man, I consider that since he encountered those difficulties, he has worked and gained useful and practical business experience which would be valuable in many parts of Pakistan.   I do not accept that there is anything in the applicant’s circumstances which pose any particular barrier to him finding employment in Pakistan and earning a sufficient living for himself and his family.

6. I have also taken into account that the applicant’s father (and the applicant) did operate a successful business without significant difficulties related to their faith (or for any other reason) in Sialkot for many years before encountering persecution by KN.  This does suggest that the applicant’s claims of lifelong, oppressive discrimination which was severely restricting his capacity to earn a living - are overstated. The evidence before me does not suggest any reason why the applicant, with his desirable [specified] experience, would have any particular difficulty in finding employment throughout Pakistan, even taking into account his earlier difficulties in finding work as a young man due to his faith.  I have noted that he could not work in the same (family) business as he had previously, but I am satisfied that the work experience he has would assist him in finding work on return, wherever he was to relocate. 

7. In considering the reasonableness of relocation, I also note as discussed above when considering the real chance of persecution, the fact that the applicant’s father has not been located, assaulted or threatened by the Sialkot KN since he moved to Sindh.  His brother, who worked in the same business, has not been located, assaulted or threatened by the Sialkot KN since he moved.  His wife, who remains in Sialkot, has also not been contacted by his persecutors.  I consider that the evidence before me suggests that the applicant is not of any continuing interest to his previous persecutors, and that they are not ‘looking’ for him outside his home area (or even within it), and thus would not pose any particular or targeted obstacle or threat to him in relocating.     I consider that the Sialkot members of KN would be unlikely to locate and target the applicant for extortion or serious harm if he were to return to Pakistan and live outside of Sialkot, because he has no business from which they could extort money and because he is not an Ahmadi. Whilst there may remain some perceptible risk of the applicant being subjected to extortion in a future business, there is nothing in the applicant’s circumstances which would elevate his risk of extortion above that of other members of the community.  I consider that the possibility (which is speculation only) that he might be extorted at some point in the future does not make relocation unreasonable – as he would be in the same position as any other businessman in Pakistan.  

8. In considering the reasonableness of relocation, I have also considered the applicant’s wife and child, who remain in Pakistan.   During the hearing, the applicant made it clear that he expected that they would live with him if he returns to Pakistan.  The applicant said his wife is ‘doing well’ and does not face any particular concerns except worrying about the applicant’s wellbeing if he were to return to Pakistan.  The applicant specifically stated that his wife (and son) has no specific fear of harm in Pakistan, regardless of where she lives – though it was implicit in what he said that his concerns about sectarian violence against Shias generally also apply to his wife.  There is no information before me to suggest that the applicant’s wife and son would be unable to join him if he relocated outside Sialkot, or that they would face any particular problems or risks in relocating when the applicant returns, other than the ordinary inconvenience and hardship of re-establishing a family life after a period living apart.   The applicant’s father and brother also remain in Pakistan, and could offer him at least temporary emotional support while he re-establishes himself on return.    I accept that the applicant would face some hardship in re-establishing himself and that he would prefer to do so in Australia.  However I consider that the applicant would be in a position to relocate and find employment and would be capable of earning a living sufficient to support himself and his family in an area of Pakistan outside of his former home area of Sialkot.  I have considered the general situation of sectarian violence in Pakistan and the country information and the applicant’s circumstances as a whole.   I do not consider that the assessed low level risk of sectarian violence and discrimination faced by Shias generally in the areas where the applicant could relocate such as Islamabad and Lahore renders relocation unreasonable. I find that, taking into account all of these circumstances, the applicant could reasonably relocate to an area outside Sialkot where he would not face a real chance of persecution. 

9. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

10. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).   

11. I refer to my discussion of the applicant’s claims above.  I am satisfied that the harms feared by the applicant, namely being attacked, killed, extorted and discriminated against to the point where he would be unable to subsist if he returns to Pakistan, constitute significant harm.

12. Section 36(2)(aa) 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.

13. In relation to whether there is a ‘real risk’ that the applicant will suffer significant harm, I refer to and rely on my discussion of the applicant’s claims and my findings in relation to the real chance test above.  For those same reasons, I find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Pakistan, there is a real risk that the applicant will suffer significant harm (that he will be attacked, extorted and killed) if he were to return to Sialkot to live and work.  For the same reasons as discussed above, I find that the real risk of significant harm faced by the applicant is however localised in and around Sialkot.  I find that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm (that he will be attacked, extorted and killed, or subjected to conduct which amounts to cruel or inhuman or degrading treatment or punishment) from members of KN or any other extremist group, or from Sunni community members because of his religion or for any other reason if he were to return to Pakistan and reside outside of his former home region, Sialkot.   

14. I have found that the applicant could reasonably relocate outside of Sialkot when considering the definition of a refugee.  For those same reasons, I find that the applicant could reasonably relocate within Pakistan to an area such as Islamabad, Lahore or Hyderabad where there would not be a real risk that he would suffer significant harm (or any harm). 

15. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Anne Grant
    Member