1616700 (Refugee)

1616700 (Refugee) [2019] AATA 4981 (23 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616700
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Justin Meyer
DATE:23 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 23 April 2019 at 2:41pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – leadership role and activity in minority political party – attacks and threats by other political parties and extremist groups – religion – conversion to Christianity in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss. 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 6 May 2015. The delegate refused to grant the visa on the basis that there was not a real chance of persecution and the delegate was not satisfied that he had a real chance of significant harm if returned to Pakistan.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether or not the applicant meets the criteria for a Protection visa.
I find the applicant to be a Pakistani national based on the passport and identity evidence supplied to the department.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
The delegate made findings from these claims:
·The applicant was born and raised in Karachi, Sindh, Pakistan. He is [age] years old.
·The applicant states that he is seeking protection based on his political beliefs and business activities.
·His father was a [Occupation] however he has since retired and is currently working for the secular Awami National Party (ANP) to primarily assist with the welfare of the Pashtun people in [a district in] Karachi.
·His whole family have a high level affiliation with the ANP. His father is still an active ANP member and has played a vital role in election campaigns as well as social advertising and administering rights for Pashtun’s particularly in [a district in] Karachi.
·Following in his father’s footsteps he became [an office bearer] and a [council member] of the ANP of [a district in] Karachi.
·The applicant was the owner of a successful business called [Business Name]. He was arbitrarily attacked by local terrorists. Because of inferences drawn between the name of his business and the Christian Faith, he has been unfairly targeted,
·He was a victim of extortion from mafia groups, Tehreek-e-Taliban and Muttahida Quami Movement (MQM). These groups have targeted his business because he has refused to comply with their extortion demands.
·He states that these particular groups are notorious for such activities in Pakistan. He is fearful of his personal safety, liberty and for the welfare of his family.
·Due to his political beliefs he feels at risk. His political affiliations are with the ANP. The ANP is a liberal progressive party which is in direct conflict with the Taliban.
·Thousands of ANP supporters have been killed in recent history. The threat of torture and harm will always be imminent.
·These groups have continuously sent him threats and he refuses to pay the extortion money. These groups continue to use ‘stand over’ tactics to intimidate him whilst he is working at his place of business.
·They would arrive at his business and force him to pay their demands, if he didn’t pay, they would threaten him with torture.
·The terrorist groups attempted to destroy his business in 2007, 2009 and 2012 and in 2015.
·In 2007 the terrorist came to his shop in a group of 6-7 people and demanded extortion money. They looted his business overnight which caused him financial loss of up to 1 million rupees.
·He lodged a police report at the local police station. After sitting on his report for three months, the police decided to close the case on the grounds that they could not recover the money stolen. They confirmed in writing that he had a genuine case and had suffered extreme damage.
·After this incident, things went back to normal, he fixed the shop and the business started running smoothly.
·In 2009, masked men entered the shop and held his brother at gun point demanding him to empty the till and hand them over products. That day he suffered a loss of 350,000 rupees.
·As a result, the applicant was in serious debt.
·In 2012 he was robbed at gun point and lost another 300,000 rupees.
·The applicant states he has endured life threats, public humiliation and economic loss as a result of persecution from these groups. He has also received written correspondence from these groups demanding extortion money.
·Upon refusal they have dragged him to their torture cells and have forced payment under duress. He has been verbally accosted in his store in front of customers.
·He tried to relocate to the KPK region of Pakistan for several months however he experienced similar issues and therefore returned to Karachi.
·The applicant, through his lawyer filed criminal proceedings before the court of law in Karachi; however he was again inundated with threatening messages to the extent that he had no other option but to seek refuge in Australia.
·His political affiliations have put an immense strain on his family’s life. Seeing as the ANP party was in direct conflict with the Taliban, consequently thousands of ANP supporters have been killed.
·The recent rangers operation in Karachi against the MQM and the Taliban has caused instability within the city and for Pashtuns in Pakistan overall.
·The applicant fears death for refusing to pay extortion money. He feels the authorities are unable to protect him as they are prime beneficiaries of the crimes. Corruption is prevalent in Pakistan and it is not uncommon for Police to look the other way in return for bribes.
Psychologist report
A registered consultant psychologist, [Mr A] wrote a report having had the applicant referred to him by his general practitioner on 8 April 2016, regarding the management of anxiety and depression.
The letter discusses the ongoing anxiety and stress issues of the applicant but also describes his improvement following therapeutic treatment on seven occasions in 2016 and 2018. The psychologist was of the view that if the applicant had to return to Pakistan would have a return of symptoms, perhaps even more strongly.
Other written evidence
To further support his case the applicant forwarded:
·Letters dated 14 November 2017 and 12 December 2015 from Younus Khan Boneri, General Secretary of the Awami National Party (Sindh), confirming his role as [an office bearer] of the party in the [area] of Karachi
·First Information Report dated 5 June 2016 regarding a shop robbery (notarised translation);
·Affidavit by Mrs [B] dated 1 April 2015 (the applicant’s mother stating that the applicant had faced threats to his life, demands for ransom and extortion (notarised translation);
·Affidavit by [Mr C] dated 1 April 2015 (the applicant’s father) stating that two to four boys would come to the applicant’s shop with extortionate threats and that the applicant left Pakistan in fear of his life;
·First Information Report dated 11 March 2015
·Criminal Application by [the applicant] dated February 2015
·Court Order dated 27 February 2015;
·First Information Report dated 2 April 2010; and First Information Report dated 15 September 2007;
·Various Income Tax Records of [the applicant], as evidence of continued operation of business;
·Renewal of Tenancy Agreement by [the applicant], as evidence of continued operation of business.
·Statutory Declaration by [the applicant], dated 21 August 2018;
These documents support the applicant’s claims of owning and operating businesses in Pakistan and experiencing incidents in the way he has described and I give them regard. The applicant’s claims generally are very well-documented and have greater weight as a result.
The applicant also made a statutory declaration on 21 August 2018 giving detail to his claims, along these lines:
·He had a senior role in the ANP and enclosed membership cards and confirmation for himself and his father.
·His father was originally from Khyber Pahtunkwa but settled in Karachi in 1976, and the family became active in the local ANP as minority Pashtun business people. It was a time of ethnic conflict between Mohajirs and Pashtuns.
·His father was [an office bearer] in [an area of] Karachi. He was an organiser and knew the top leadership. He also lobbied for [social welfare]. He was a successful business man.
·The applicant joined the ANP youth wing, the PSF. The security situation meant that the family felt safer if the applicant completed his studies in Peshawar, which he did. He went to [university]. He became homesick and returned to Karachi.
·He was interested in politics and business
·He set up a [business] in Karachi. It flourished, but attracted Mohajir customers which led to ructions and he moved his location as a result.
·He became involved in campaigning in Karachi in the 2008 and 2013 elections. He handed out brochures, posted advertisements and did questions and answers.
·The security situation led to him hiring a guard for his shop. Standover people came ot his shop looking for ‘donations’. Mohajirs were behind these visits. His polite brushoffs did not work and he was threatened. The first attack against him was in 2007 his store was raided and all stock was stolen as well as PKR56,000. The police did little despite his report. The incident stimulated him to stand up for his rights through more involvement in the ANP.
·In December 2010 there was a second incident – even though he upgraded security in his store, new standover men arrived, who did not explicitly say they were Taliban but had typical characteristics. Mohajir groups also visited in a similar threatening manner. He ended up paying extortion moneys ranging up to PKR50,000. His business was attacked in December 2010 - masked men burst in, speaking Urdu and Pashto, and pointed guns. They stole stock and cash, quickly driving off. A first information report was made with the police, but nothing came of it. The total loss was PKR350,000.
·There was another incident in 2012 – he was accosted by men after riding back from a market – they stole stock worth PKR300,000.
·He attempted to escape further harm by relocating to Peshawar, taking his elderly mother. But after setting up shop Pashtun men demanded protection money menacingly and he decided to go back to Karachi after a short while.
·By 2014 it was too much for him and he left Pakistan the following year. By then January 2015 a Mohajir group visited him again and by February 2015 he barely had much money left.
·His brothers had their business attacked after he left. His father was seriously injured in 2017 - he needed 42 stitches and was knocked unconscious by Pashtun men. He is a stubborn man who will not leave Pakistan.
·He has avoided ANP activities whilst away from Pakistan but would get involved again if forced to return.
·His attempts to relocate were unsuccessful as described and would not succeed again if forced to.
·His overseas travel was for work and leisure reasons, but he concedes that he willingly went overseas to improve his chances of leaving Pakistan for good.
·His family were subjected to more attacks in early 2016 when they opened a new business in Karachi – it was robbed and looted. The police investigation yielded no results.
·He will be discriminated against because he is Pashtun.
Evidence in the hearing and analysis
The applicant is unmarried and has [siblings]. His parents are still alive. All family members are in Karachi. The applicant said that his father had represented the ANP and was [age] years old. He is not yet retired.
In 2004 he set up a company called [Business name] which had two stores operating at once. His parents assisted even in setting up these businesses. His [siblings] are educated people. And he had attended college. His father had an organisational role in the ANP. He was [an office bearer], which is one of four divisions in Karachi. His father was not paid for this work. The applicant said he was an ordinary member. The applicant said he saw his father dealing with issues in the ANP. The applicant said in 2004 when he started his business he focused on the survival of the business. Once business was stable he increased his involvement in the ANP. The highest rank he had was [an office bearer] in a small ward in [a district of Karachi]. The applicant described the strongholds of the ANP being KP, Karachi, and Balochistan. He said he was [an office bearer] from 2012 to 2015.
He first began to have troubles in 2007. Seven to eight people came asking for money and he was extorted. The appearance and accent of the instigators was Pashtun and they wore turbans. They had large moustaches and facial hair. They demanded PKR1million. He subsequently had to close his shop. The applicant gave overall consistent evidence with his written submission in relation to the standover attempts and store closures.
The applicant’s account of the 2012 attack revolved around Pashtuns stopping him on the way to the market and being targeted for being ANP views and identity. His business was suffering greatly. He reiterated his written evidence about the 2015 demands and related as to how his business had suffered a lot. I put to the applicant that he was potentially the victim of generalised violence in Pakistan society particularly with Taliban and standover people operating with impunity. He replied that he was hated is particularly for being ANP. He said he had tried living elsewhere. He said that in 2012 he lived in Peshawar but encountered similar problems and this evidence was given consistent with his written statement. He had started a business in a particular plaza that had encountered similar standover tactics. The applicant also spoke about a 2018 ANP suicide blast attack.
Country information from the Department of Foreign Affairs was discussed with the applicant. An updated version of that DFAT country report on Pakistan dated 19 February 2019 was discussed considered.
Relevant sections for consideration are as follows:
SECURITY SITUATION
266. The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
267. Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
268 Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
269. 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).
Violent and Organised Crime
2.97 Security forces have sought to tackle violent and organised crime across the country, particularly in large urban centres such as Karachi. Lahore, Karachi and other major cities generally have higher levels of violent crime than Islamabad, due to the large number of security personnel deployed in Islamabad relative to its population. Violent crime in rural areas and in Gilgit-Baltistan is generally lower.
2.98 Kidnapping is common in parts of Pakistan. While in some cases kidnapping is associated with family and domestic disputes, it is also a tool linked to security and/or political agendas. Gender based violence is also common, but often goes unreported (see Women).
Pashtuns
3.4 Pashtuns are identified by their use of the Pashto language and its many dialects. Pashtun culture emphasises tribal and family relations, as well as customary norms collectively referred to as Pashtunwali. Pashtuns are predominantly Sunni, but not exclusively (see Turis).
3.5 Pashtuns comprise an estimated 15.4 per cent of the population of Pakistan, making them the second-largest ethnic group in the country after Punjabis. Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, although many have migrated to urban areas. The largest Pashtun communities live in Karachi, which hosts the largest population of Pashtuns in the world, followed by Peshawar. Pashtuns also live in Balochistan, Islamabad, Lahore and other urban areas.
3.6 Pashtuns are represented at all levels of society in Pakistan. Historically, Pashtuns have dominated employment in the transport sector in Pakistan and Afghanistan. Pashtuns are well represented in Pakistan’s security forces. PTI has a strong support base in Pashtun-dominated Khyber Pakhtunkhwa (the only province the party had governed prior to election in 2018).
3.7 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.
3.8 The TTP’s support base is primarily Pashtun (see Armed Groups) and local sources claim Operations Zarb-e-Azb, Radd ul-Fasaad and the NAP have led to official discrimination and racial profiling in terrorism-related arrests. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’
3.9 In 2018, many Pashtuns were involved in large-scale demonstrations coordinated by Pashtun Nationalist movement, Pashtun Tahafuz [Protection] Movement (PTM), seeking protection against state oppression and human rights abuses against Pashtuns in the tribal regions of Pakistan. In April 2018, over 60,000 Pashtuns gathered at a mass PTM driven demonstration in Peshawar to demand Pashtun rights. PTM gained prominence following the extra-judicial killing of a Pashtun, Naqeeb Ullah Mehsud, in an alleged fake-encounter by the Karachi police in January 2018. PTM protests staged in different parts of the country alleged security enforcement involvement in the enforced disappearances, extra-judicial arrests and killings, and mistreatment of Pashtuns. PTM claims Pashtuns are humiliated at army check posts and are racially profiled.
3.10 Pashtuns migrating within Pakistan, particularly to Karachi and Lahore, also report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR 500,000 (AUD 5,500) on the threat of being listed as a terrorist (see TTP in Armed Groups). Pashtuns also report frequent blocking of their CNIC when relocating (see Computerised and Smart National Identity Cards (CNICs and SNICs)), which impedes access to property and assets. Where evidence of wrongdoing is lacking and influential connections are available, Pashtun community leaders are typically able to secure the release of arrested Pashtuns. As a result, Pashtuns prefer to relocate to areas where they have family connections, notably within Khyber Pakhtunkhwa or Sindh (not including Karachi), and to avoid resettlement in Punjab.
3.11 The Awami National Party (ANP), which has a heavy Pashtun support base, is strongly anti-Taliban and also faced considerable electoral violence in 2018, including during the 2018 polls (See Awami National Party (ANP).
3.12 DFAT assesses that 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)).
Awami National Party (ANP)
3.170 ANP is a Pashtun nationalist, secular political party that promotes opposition to the TTP, with headquarters in Peshawar, Khyber Pakhtunkhwa. ANP’s major support bases are in Khyber Pakhtunkhwa and Balochistan. ANP formed in 1986 as a successor to the National Awami Party, and served in several national and provincial coalition governments in the 1990s. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government with the Pakistan People’s Party.
3.171 Like other parties in Pakistan, the ANP can be affected by politically motivated violence. It is also the target of violence from militant groups. The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and counter-insurgency operations in the former FATA and Khyber Pakhtunkhwa, and work to improve the Pakistan-Afghanistan bilateral relationship. ANP claims to have lost 1000 members to acts of terrorism. However restrictions on media reporting in the former FATA and Khyber Pakhtunkhwa (see Media) may mean some incidents—particularly those involving low-level officials—are not reported.
3.172 In July 2018, a suicide bomb attack at an election rally in Peshawar wounded at least 69, and killed at least 20 people, including prominent local ANP politician Haroon Bilour. Bilour was a Provincial Assembly candidate for the July 25 2018 general elections. His father, Bashir Bilour, a prominent ANP politician, was also killed by a suicide bomber in 2012. The ANP was the target of TTP attacks during lead up to the May 2013 elections. Many of the party’s leading candidates restricted their electioneering to their houses or via Skype. On 11 April 2016, militants killed an ANP leader in Swat, Khyber Pakhtunkhwa.
3.173 In 2018, ANP Pashtuns were also involved in in large-scale demonstrations coordinated by PTM (see Pashtuns) seeking protection against state oppression and human rights abuses against Pashtuns in the tribal regions of Pakistan.
3.174 DFAT assesses that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship (see assessments under Pashtuns and Afghan Refugees)
STATE PROTECTION
5.1 Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.
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.
INTERNAL RELOCATION
5.31 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common.
5.32 Large 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 (see relevant sections). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.

The Tribunal finds that the applicant is a Pashtun and an ANP supporter.
Particularly relevant is the current DFAT Pakistan report of 20 February 2019. It describes the risk facing ANP-linked persons in stronger terms than its previous recent reports.
Previously DFAT described the risk facing the ANP supporters at the lower end of the scale. However in 2019 DFAT assessed that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship.
I have come to the conclusion that the applicant as an ANP supporter faces a moderate risk of terrorist-related violence because of the ANP’s past opposition to the TTP. The applicant is vocal as a supporter of the ANP, and I have no reason to suspect that the applicant hid his views completely whilst in Pakistan, nor will he if returned. His expression of views may have been curtailed but people’s memories may well linger. He has a profile of some kind, although it is not a high profile. Yet I note DFAT’s remarks in its 2019 country information that restrictions on media reporting in the former FATA and Khyber Pakhtunkhwa may mean some incidents -particularly those involving low-level officials - are not reported. He could well become a victim in such an instance.
I find that the applicant has a well-founded fear of persecution where he fears being persecuted for reasons of membership of a particular social group and political opinion.
I find that there is a real chance that, if he returned to his receiving country, he would be persecuted. The real chance of persecution relates to all areas of a receiving country. The country information does not confine the risk facing ANP supporters to particular areas of Pakistan. Although the risk may be higher in areas where the TPP is more active, I do not accept that relocation is a viable option for the applicant. I note for example that the applicant has family members in Pakistan. Because of traditional family and extended family support systems, living apart from one’s family and wider relatives is challenging. I am also concerned about the degree to which the risk could be reduced living in other areas of Pakistan. I am not prepared to make an assumption that TPP, its affiliates, or other militants would be unable to identify the applicant or his family as being Pashtun and or ANP supporters just because he was living in a different part of Pakistan to his home district or province.
Having gauged the applicant’s level of interest in politics, the fervency of his beliefs, relatively easy identification as a Pashtun, and his obvious educational attainments, along with his contact with his family and social grouping I find that he would not be able to modify his behaviour in such a way to mean that he no longer has a real chance of being persecuted.
I am satisfied that the incidents that he has described are well-supported by documentary evidence such as police reports. I have questioned the applicant in detail about various incidents and have no reason to believe that they did not occur or are exaggerated.
I turn to the applicant’s claims about Christianity. He claimed that in his initial period in Australia he felt depressed and a friend suggested he go to church to feel better. He went every Sunday and over time he said his faith had changed. He had received help from Christians that Muslims did not give him. He found them to be motivating and they helped him find work. He obtained a job [doing a job task] for a [company]. He attends church regularly and is now in the [Church]. Evidence was tendered as to his baptism which was planned for December 2018. I asked the applicant what would happen to him if he returned to Pakistan to which he replied that everybody would be after him and that was not acceptable to be a convert to Christianity. He said he would not be accepted. He refers to the Asia Bibi case and said that the penalty against blasphemy was very strong. He said that this was a different situation to somebody who was born into Christianity. The applicant was asked if he would continue with Christian faith and teaching if it was so difficult in Pakistan. He replied that he was so impressed by Christianity and moved by its teaching that he could not renounce his belief. I asked the applicant about what his beliefs were and he referred to Jesus being the son of God, about repentance, and about the Holy Spirit being the gift of God.
The Tribunal also queried the applicant about the identity of [a church leader], who he correctly stated produced [a book].
There are supporting letters from Bishop [D] of [Suburb 1] [Church] and another Bishop of [Suburb 2] in relation to the applicant’s faith which I give regard to.
I further refer to 2019 country information from DFAT as follows:
Christians
3.136 The 2017 national census recorded that 1.6 per cent of the population, an estimated 3.3 million people, identify as Christians. Christian groups in Pakistan have told DFAT this number is inaccurate, and the community is larger. Most Christians live in Punjab, with sizeable populations in Sindh, Islamabad and Khyber Pakhtunkhwa. Most Christians are descendants of low-caste Hindus who converted during the British era. While a small number of Christians are relatively prosperous, Christians are the most economically vulnerable group in Pakistan and face significant social prejudice and class discrimination.
3.137 In 2018, Christian support group, Open Doors, ranked Pakistan fifth (out of fifty) most difficult country to be a Christian on its World Watch List. Many Pakistanis refer to Christians as ‘bhangi’ meaning dirty or sweepers. In 2018, politician Arif Abbasi reportedly referred to Christians as ‘churna’ in a National Assembly debate (meaning low-caste, but also with connotations of cleaning/sanitation work). Some advertisements for low-status work ask for Christian applicants only. Many Christians are bonded labourers with little education and thus limited access to legal remedies. Christians are also disproportionately represented in blasphemy cases (see Blasphemy).
3.138 Pakistan law does not restrict Christians from practising their religion, although some face difficulties in establishing new places of worship. Sharia law protects Christians as ‘people of the Book’, but these protections are rarely observed in practice. There are three Christians in the National Assembly, two in the Senate, seven in the Punjab Provincial Assembly and one in the Sindh Assembly. There are no Christians in the Balochistan or Khyber Pakhtunkhwa Assemblies. The 2018 USCIRF annual report notes no substantive progress on the Christian Marriage and Divorce Bill, originally proposed in 2012.
3.139 Militant groups target Christian individuals, churches, residences or other places where Christians congregate. A suicide bomber attacked a park in Lahore on Easter Sunday in 2016, killing 74 people—including many women and children. Jamaatul Ahrar claimed responsibility for the attack, and said it deliberately targeted Christians. Christians tend to live in concentrated areas or enclaves, which mitigates their risk of societal discrimination but increases their vulnerability to violence.
3.140 Since 2013, police have provided additional security to major churches during religious services. This has reduced, but not eliminated, the risk of violence. Police also provide some protection to Christian enclaves in major cities, to complement the community’s own security arrangements. In September 2016, four suicide bombers attempted to attack a Christian enclave on the outskirts of Peshawar in Khyber Pakhtunkhwa province. Security forces intervened and engaged the militants in a gun battle. The militants detonated suicide vests, killing a civilian security guard. Jamaatul Ahrar claimed responsibility.
3.141 Community members claim that police have, on occasion, not responded adequately to attacks on Christians. In December 2017, ISIL claimed responsibility for a suicide attack on the Bethel Memorial Methodist Church in Quetta, killing nine worshippers and injuring at least 35. Four hundred worshippers were attending a service, but Christians claim no police were in the area, which was unusual. The US Department of State’s 2017 Country Report on Human Rights Practices also reported that police often fail to protect religious minorities, including Christians.
3.142 ISIL also claimed responsibility for second attack against the Christian community on 2 April 2018, in which gunmen killed four members of a Christian family.
3.143 DFAT assesses that Christians face a low level of official discrimination and a moderate level of societal discrimination. DFAT further assesses that Christians face a moderate risk of societal violence and sectarian violence. DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy disproportionately affect religious minorities, including Christians, in Pakistan (see Blasphemy).
Noting that Christians tend to live in concentrated areas or enclaves, which mitigates their risk of societal discrimination but increases their vulnerability to violence, and further noting that Christians face moderate level of societal discrimination, I make the following findings.
The applicant is a Christian or a [Church] Christian and I find that he is a regular churchgoer and adherent. I consider it unlikely that the applicant would abandon his beliefs if he had to return to Pakistan. I found that his beliefs as stated in the hearing were of a more general Christian nature and he seemed to encompass the [Church] faith as being as one of multiple Christian groups in the world.
I have come to the conclusion that the applicant as a person who identifies as Christian faces a moderate risk of violence and systematic discrimination because of the opposition from anti-Christian groups and persons in Pakistan. His situation would be worsened as a convert.
I find that there is a real chance that, if he returned to his receiving country, he would be persecuted. The real chance of persecution relates to all areas of a receiving country. The country information does not confine the risk facing Christians to particular areas of Pakistan. Although the risk may be higher in some areas I do not accept that relocation is a viable option for the applicant. I note for example that the applicant has family members in Pakistan. Because of traditional family and extended family support systems, living apart from one’s family and wider relatives is challenging. His mental health although improved of late could worsen if returned and would make his relocation even less viable. I am also concerned about the degree to which the risk could be reduced living in other areas of Pakistan. I am not prepared to make an assumption that opponents or other militants would be unable to identify the applicant just because he was living in a different part of Pakistan to his home district or province.
I acknowledge that whilst Pakistan’s formal legal framework provides for state protection of people’s religious beliefs, state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and deficits in political will. I am not confident that the applicant could be protected to any reasonable degree by the authorities in regards to his religious beliefs.
Turning now to Pashtuns I observe that they comprise an estimated 15.4 per cent of the population of Pakistan, making them the second-largest ethnic group in the country after Punjabis. Pashtuns are found throughout Khyber Pakhtunkhwa and the former FATA, in Karachi, Peshawar, Balochistan, Islamabad, Lahore and other urban areas. They are a very large group of some 31 million and are represented at all levels of society in Pakistan. I do not accept that this in and of itself attracts persecution for the applicant. His Pashtun identity is not in itself a ground for making this finding, but it is tied into an imputed point of view and political opinion as an ANP supporter, that party being Pashtun-dominated or influenced. Further, his Christian identity is not in itself a ground for making this finding, but it is tied into an imputed point of view and social group as an apostate and or/convert, and possibly a western-influenced one.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Justin Meyer
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 4981

23 April 2019

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