1617664 (Refugee)

[2017] AATA 832

1617664 (Refugee) [2017] AATA 832 (24 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617664

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Christopher Smolicz

DATE:24 April 2017

PLACE OF DECISION:  Adelaide

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 24 April 2017 at 4:48pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Federal Court remittal – Religion – Shia – Ethnicity – Pashtun Turi – Imputed political opinion – Anti-Taliban – Previous trauma – Mental health – Relocation not possible

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 65, 430(1), 499
Migration Regulations 1994, Schedule 2

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
MZYLH v Minister for Immigration & Anor [2011] FMCA 888

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] November 2012.

3. [In] July 2013, the delegate of the Minister for Immigration refused to grant the applicant a Protection (Class XA) visa. The applicant subsequently applied to the Refugee Review Tribunal (RRT) for review of this decision.  The RRT (differently constituted) affirmed the decision not to grant the applicant a protection visa.

4. The applicant subsequently applied to the Federal Circuit Court of Australia (FCCA) to review the decision of the RRT. [In] April 2015 the FCCA upheld the RRT’s decision to refuse to grant the applicant a protection visa. The applicant subsequently appealed to the Federal Court of Australia (FCA). [In] October 2016 the FCA set aside the decision of the FCCA and remitted the matter back to the Tribunal. His Honour [name] found that the Tribunal had committed jurisdictional error by failing to consider whether relocation was reasonable having regard to all circumstances of the appellant’s case.

5. Accordingly, having been remitted to the Tribunal from the FCA the matter was brought back before the Tribunal for reconsideration.

6. If the Tribunal is reconstituted following a remittal, the reconstituted Tribunal is not bound by any findings on the review made by the Tribunal as previously constituted.[1] The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time. However, if the reconstituted Tribunal departs from the facts as found by the previous Tribunal it is advisable to explain why in the decision record.[2] In some circumstances, such an obligation may be imposed upon the Tribunal by section 430(1).

   [1] SZFYW v MIAC [2008] FCA 1259 (Flick J, 18 August 2008) at [9]; SZHKA v MIAC (2008) 172 FCR 1 per Gray J at [18].

   [2] SZFYW v MIAC [2008] FCA 1259 (Flick J, 18 August 2008) at [11]; Haidari v MIAC (2008) 104 ALD 74 at [8].

7. The applicant appeared before the Tribunal on 28 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

8. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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).

11. 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.

12. 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’).

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

    The applicant’s factual claims and the Tribunal’s findings

14. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview and statements of claim.

15. The issue in this case is whether the applicant has a well-founded fear of persecution in Pakistan because of his:

    ·     Shia Muslim religion

    ·     Pashtun Turi ethnicity (race)

    ·     imputed political opinion, namely being opposed to the Taliban by virtue of his Turi tribal affiliation.

16. For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.

    Summary of substantive claims

17. The applicant was born on [date] in the village of [Village 1], in Parachinar, Upper Kurram Agency, in the province of the Federally Administered Tribal Areas (FATA) in Pakistan. He is a Shia Muslim, of Pashtun ethnicity and a member of the Turi tribe.

18. He grew up in the village of [Village 1] which is a village made up solely of Turi and Shia Muslim families. In about 2007 his family left [Village 1] and moved to the area of [location]. [Village 1] is around [distance] kilometres from Parachinar city. The area of [location] was not a residential area at the time the applicant’s family were amongst the first families to settle in this area.

19. The applicant’s father died around twenty years ago. The applicant is uncertain of the details behind the death but understands his father may have been killed in a car accident while in [country].

20. After his father passed away, his mother married his [relative] who he considers to be his step-father.

21. The applicant said there have been growing tensions over recent years between the Shia and Sunni Muslims in Pakistan. From 2007, these tensions began as a result of a conflict between the Taliban and Turi tribes in his area. At this time, Turi elders denied access to the Taliban to pass through the main road that travelled through his villages in Parachinar in order to access Afghanistan. The applicant states that the Taliban intended to use this road in order to assist them in travelling over the border to fight against NATO forces in Afghanistan. His tribe sits on the border with Afghanistan and Pakistan and Turi elders denied the Taliban access to the road. The Turi were fearful that this would allow Taliban to access his area from both Pakistan and Afghanistan. The Turi people were also fearful this would cause them to face pressure from the Pakistani government. In response the Taliban and Sunni Muslims started to attack Turi Shia areas and Turi Shias around different areas within the Kurram Agency. As a result many villages were completely destroyed and a lot of people lost their lives. Many Turi Shia Muslims were kidnapped and killed. There have also been many suicide bomb attacks in Turi Shia areas within Parachinar.

22. The applicant submitted that since this conflict commenced, around the last 5 years, the road from Parachinar to Peshawar has been blocked completely. The applicant said that in order to travel out of Parachinar to Peshawar you need to pass by Sunni Muslim areas, including the area of [name]. The Sunni Muslims first started to block off the road travelling beyond their areas to Peshawar and prevented the Turi Shias from Parachinar from travelling out along these areas. Later on the Sunni Muslims in these areas started to be supported by Taliban who then helped them block off access through these roads.

23. Since the road has been blocked the applicant has been forced to live like a prisoner in his area. The restriction on his ability to travel freely outside the area impacted his on a daily life. For example he was not able to further his studies due to the road closures. His [siblings] also faced the same issues and were prevented from undertaking further studies due to restrictions on the ability to leave Parachinar.

24. At the time that the road were closed, his step father [had] a business where he would import different items through Afghanistan to Parachinar including [items] and other basic supplies. Traders like his stepfather would purchase these items through Afghanistan as the road was blocked to Peshawar and this was often the only way to get access to these basic items. The goods would then be sold to shop keepers who would sell it onto the people in Parachinar village.

25. During this time the road through Afghanistan was very dangerous and from time to time traders like his step-father would be escorted by members of the [foreign] forces in order to travel and purchase these supplies and bring them back to Parachinar.

26. Around June 2008 his step-father was killed while he was travelling through the mountains along [Road 1] while travelling to Afghanistan in order to purchase supplies. [Road 1] is within Parachinar in Pakistan and is nearby the Sunni Muslim area of [name]. His step-father was approaching shops that sat just over the border into Afghanistan. Someone from around the mountain area shot his step-father and he died as a result.

27. The applicant believes that the Taliban were the ones who had shot his step father as only they would carry out such an attack in this area against a trader coming from Parachinar.

28. After his step-father died he took over his business. He never travelled to Afghanistan himself. He would travel up to [Road 1] that is within Parachinar near the border with Afghanistan and would meet with a trader from the other side from Afghanistan. The applicant would then purchase the items from him.

29. The applicant said he stopped working in this business after two months as he became fearful for his own safety while carrying out this work. The area where he was travelling to purchase the goods was occupied by Taliban and each time he travelled to this area he was putting life at risk.

30. Around 2009 an associate of his step-father was abducted. This person was another trader who was purchasing goods in Afghanistan and selling it to shopkeepers in Parachinar. He believes that he was kidnapped because the Taliban were trying to stop him from bringing supplies to the Turi Shias in Parachinar. His family had a good relationship with this person through his step-father. His death again made the applicant fearful for his own safety.

31. The applicant claimed that the only skill he had was to work as a shop keeper and he could not do this work in Parachinar because he could not travel out of his area.

32. He started to work as a farmer on his family's farm but everything that was harvested from this farm was only enough for his family's own needs.

33. The applicant submitted that the situation in Parachinar over recent years continued to become worse. He wanted to leave Pakistan for some time but has been prevented from being able to do this.  Firstly, in order to leave Pakistan he needed to obtain a National Identity Card and Passport. Under Pakistani law he was required to be 18 years before he could obtain his National Identity Card. His identity documents indicated that he was born in [year] and so this made him under 18 when he was trying to arrange to leave the country.

34. Secondly after his step-father died, the applicant became responsible for supporting his mother and [siblings]. He was concerned about leaving his family while his [siblings] were too young.

35. His mother had also been very ill [and] had to fly to Peshawar in order to get treatment for this. At this time he was concerned about leaving Pakistan and wanted to look after his family while his mother was being treated in the hospital.

36. In March 2012 he flew out of Pakistan to [Country 1]. He spent a few hours in the airport in [Country 1] before he flew to [Country 2]. After he spent a few nights in [Country 2] he travelled by boat into [Country 3]. While in [Country 3] the applicant made contact with the UNHCR in order to register as a refugee. He had a short interview to provide some details but then did not hear anything further from them.

37. The applicant said that he boarded a boat from [Country 3] that [details of incident deleted].

38. The Tribunal finds the applicant’s account of the [incident] consistent with his Entry Interview. The Tribunal finds that [reports] which confirm that [information deleted] [3] [Information deleted].

    [3] [Information deleted].

39. The applicant told the Tribunal that his journey to Australia impacted on his mental health and he attended counselling when he was in detention after he was released into the community.

40. Since he has arrived in Australia he has spoken to his family who have told him that the situation in Parachinar continues to be very dangerous and that attacks are still being carried out by the Taliban in Turi Shia Muslim areas.

41. He fears that he would face the same restrictions on his ability to travel and would be prevented from living a normal life if he returned to his home area. In particular, he would continue to be prevented from furthering his studies, from being able to find a job that would support his family and from getting access to proper healthcare.

42. He fears that if he is forced to return he would be kidnapped, tortured or possibly killed. He claims he will be targeted in Pakistan because he is a Shia Muslim and a member of the Turi tribe. He fears harm at the hands of the Taliban who remain active in his area and continue to target Turi Shias. He also fears harm from the Sunni Muslims who live around his areas and who he believes are supporting the Taliban in their attacks against his tribe. The applicant claims the Taliban are continuing to target all Turi Shias out of revenge for the actions of the elders in speaking out against them and denying them access to Parachinar road in order to pass through to Afghanistan.

43. The applicant submitted that the Pakistani government does not have the ability to provide protection to ordinary civilians. The Pakistani government is not able to even protect its own leaders or politicians who have been killed by the Taliban.

44. The applicant submitted that he could not relocate to a different area of in Pakistan because there similar attacks are being carried out on the Shia Muslim communities all around the country.

45. The applicant submitted that he would be identified as Turi and Shia in any part of Pakistan through his accent, identity documents and through the way he practices his religion. In particular, his identity documents confirm he is from an area in the Kurram Agency that is known to be where Turi Shia Muslims live.

46. The Tribunal has also had regard to claims made in the applicant’s statutory declaration dated [in] March 2017.

    RRT decision

47. The RRT, as did the delegate, accepted the applicant faced a real chance of serious harm on the basis of his Turi ethnicity and Shia religion if he returned to his home area in the reasonably foreseeable future. The RRT did not however accept that there was a real chance of the applicant being seriously harmed for reason of his Shia identity in Islamabad or Rawalpindi. The RRT had regard to the applicant’s personal profile and found that it was reasonable for the applicant to relocate to Islamabad or Rawalpindi.

    Country Information

48. The Tribunal has had regard to information in the DFAT Thematic Report Shias in Pakistan (15 January 2016) and notes the following paragraphs in particular:

    2.3 Separate international and regional developments in the late 20th and early 21st centuries have contributed to the emergence of extremist Islamist and other militant groups in Pakistan: the Iranian revolution; Iran-Iraq War; Soviet military action in Afghanistan; NATO military operations in Afghanistan from 2001; and on-going conflict between India and Pakistan in Kashmir have all inflamed differences between Pakistan’s Sunni and Shia communities.

    2.4 Pakistan is ethnically and linguistically diverse. Despite being a majority Muslim state, the population is characterised by significant religious and sectarian diversity. Approximately 95 per cent of Pakistan’s population of 190 million is Muslim. Seventy five per cent of Pakistan’s Muslims identify as Sunni and 20 per cent as Shia…

    2.8 The Shia population is spread throughout Pakistan. Although Shias do not constitute a majority in any of the country’s four provinces, Shias do form a majority in the autonomous region of Gilgit–Baltistan. Significant numbers of Shias are located 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 Shia communities live in urban centres throughout Pakistan, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. Although some Shias live in enclaves in these cities, Shia and Sunni communities are generally well-integrated…

    4.2 Sectarian attacks have historically targeted individuals, places of worship, shrines and religious schools. Although this violence has affected all religious and sectarian groups, Shias represent a higher proportion of those attacked and killed. According to CRSS, for example, 58 per cent of fatalities from sectarian violence (122 of 212 deaths) from January-June 2015 were Shia. The majority of these casualties were from large-scale attacks rather than target killings. Generalised violence includes violence associated with government security operations; serious criminal acts; and inter-ethnic, tribal and politically-motivated violence.

    4.3 DFAT assesses there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high-profile professionals. Although Shias are more prominent during Ashura processions, heightened state protection measures during these celebrations mitigate the threats associated with this greater exposure

    4.4 Shias continue to face a threat from anti-Shia and militant groups, particularly Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) or Ahl-e-Sunnat Wal Jammat (ASWJ). Most of these networks have broad agendas, which include strong anti-Shia sentiments. Various Pakistani Taliban groups operating under the banner of the Tehreek-e Taliban Pakistan (TTP) have also claimed responsibility for attacks on Shias.

    4.5 The LeJ is the main perpetrator of anti-Shia violence in Pakistan. The LeJ is a collection of loosely coordinated cells linked to other militant networks including the TTP. Originally based in the Punjab as an offshoot of the SSP, the LeJ aims to establish an Islamist Sunni state in Pakistan. It also seeks to have Shias declared ‘non-believers’ and to eliminate other religious groups including Jews, Christians and Hindus. The LeJ has claimed responsibility for a large number of attacks upon the Shia community, particularly Hazaras in Quetta and other Shia groups in the Federally Administered Tribal Areas (FATA) and Karachi. In an open letter in November 2012, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shias and Hazara Shias’. Pakistan designated the LeJ as a terrorist organisation in 2001. While CRSS notes that LeJ did not claim responsibility for any attacks between June 2014 and September 2015, credible sources have told DFAT the LeJ remains intact and has sleeper cells in major urban centres across Pakistan…

    Violence by province

    Sindh
    …
    4.18 Overall, DFAT assesses there is a moderate level of generalised violence and a low level of sectarian violence in Karachi – the number of fatalities from sectarian violence is relatively low in proportion to the city’s large population. The security situation remains volatile, however, because of the reported presence of militant sleeper cells and the potential for backlash by those groups targeted in Ranger operations…

    Punjab

    4.19 Shias are dispersed throughout Punjab, including in the capital Lahore. Militant attacks and sectarian tensions are generally higher in those parts of Punjab where madrassa and militant networks are strongest. These areas broadly include Jhang, Multan and Rahim Yar Khan in southern Punjab, as well as Gujranwala and parts of Rawalpindi in northern Punjab which, according to a credible Islamabad-based think tank, has become a focus of militant groups driven out of Karachi and the FATA. These tensions also manifest from greater levels of segregation between Sunni and Shia communities in cities like Jhang. In larger cities such as Lahore, however, Sunnis and Shias are generally more integrated…
    
    Islamabad remains relatively safe for migrant Shia communities. According to the Turi community, for example, there has only been one attack on Turi migrants in Islamabad in the past four years: on 10 August 2013, there was an attempted suicide IED attack on a Shia imambargah in Bahra Kahu. The suicide bomber – from Punjab – was killed by guards at the imambargah while the other four perpetrators –from Sadda, Kurram Agency – were prosecuted in an anti-terrorism court in September 2015.
    
    
    4.22 Some Turi migrants in Islamabad have reportedly received unspecified threats from sectarian elements. According to Islamabad-based think tanks, there is a declining incidence of kidnapping for ransom incidents in Islamabad. Kidnappers have historically targeted Ahmadis and, to a lesser extent, wealthy migrants from tribal areas.

    Balochistan

    4.23 Balochistan has historically suffered from ethno-sectarian tensions and politically-motivated violence because of long-term demographic changes in Quetta and the activities of separatist movements…

    4.25 DFAT assesses that there is a moderate level of generalised violence in Balochistan. There is also a moderate level of sectarian violence - despite a decline in the number of sectarian attacks, Hazara Shias remain segregated and are a key target of militant groups.

    Khyber Pakhtunkhwa
    …

    According to the SATP, 27 Shias died in four sectarian attacks in Khyber Pakhtunkhwa in 2015. For example, 22 Shias died and 50 were injured during a complex attack at an imambargah in the Hayatabad area of Peshawar on 13 February 2015.

    4.28 DFAT understands that Shias continue to relocate to the relative safety of Peshawar from other parts of Khyber Pakhtunkhwa and the FATA. There are also options for internal relocation within Peshawar.  Credible sources have reported the movement of some Shia families from parts of the Old City to the New City to distance themselves from an LeJ sleeper cell in the area, for example.

    4.29 In the past, there have been Sunni-Shia clashes in parts of Hangu, Kohat, Dera Ismail Khan, Kohistan and Mansehra. For example, attacks in Rawalpindi during the Moharram period in 2013 sparked sectarian tensions in Hangu and Kohat.

    4.30 Overall, DFAT assesses that there is a moderate degree of generalised violence and a low level of sectarian violence in Khyber Pakhtunkhwa.

    Federally Administered Tribal Areas (FATA)
    …
    4.36 DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb. DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.

    Gilgit-Baltistan

    4.37 Approximately two million people live in Gilgit-Baltistan, a sparsely populated autonomous region. The population comprises Shias (39 per cent); Ismaili Shias (18 per cent); Sunnis (27 per cent); and Nurbakshis, who adhere to a Sufi tradition which combines aspects of Sunni and Shia religious thought but is closer to Shia Islam (16 per cent). Some parts of Gilgit-Baltistan such as Hunza are entirely Ismaili. According to Pakistan-based think tanks, Ismaili Shias in Gilgit-Baltistan have largely remained isolated from sectarian violence…

    4.39 DFAT assesses there is a low level of generalised and sectarian violence in Gilgit-Baltistan.
    …

    Internal relocation

    5.4 As indicated in the 15 January 2016 DFAT Country Report on Pakistan, section 15 of the Constitution guarantees freedom of movement throughout Pakistan and there are no legal impediments to relocation. This applies equally to Shias and other religious sects. Because of Pakistan’s size and diversity, internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination or violence. In many cases, there are options for members of most ethnic and religious minorities, including Shias, to relocate to areas of relative safety within Pakistan. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities. These cities also provide
    greater access to employment, education and health care services. For example, Turi migrants in Islamabad have told DFAT these factors were central to their decision to relocate from Kurram Agency.

    5.5 DFAT has observed that Shias relocate with relative ease and frequency because of family and communal networks throughout Pakistan. In Lahore, for example, there are large Shia communities in Islampura and in old areas of the Walled City. In Islamabad, there are Shia communities, including Turi Shias, in Koh-i-Noor and Golra Sharif near the Islamabad Motorway Link Road and in small towns close to Islamabad such as Taxila, Bahra Kahu, Bani Gala and Bari Imam. DFAT understands that accommodation in these (working class) areas ranges from AUD 135-270 per month (for 1-2 rooms) to AUD 685 per month (for a house).

    5.6 To some extent, these expenses are offset by higher wages paid in large urban centres, particularly for those with relevant skills, including foreign language and computer skills. Migrant communities also provide a support network which can help alleviate higher living costs in these areas. For example, it is common for 3-4 Turi migrant families to jointly purchase and occupy a house in suburbs like Bahra Kahu, while other Turis choose to live independently in Islamabad.

    Turi – Taliban conflict

1. The Tribunal has also had regard to the following country information and finds that historically the persecution faced Turi Shia encompasses a strategic, tribal and sectarian dimensions. The Tribunal finds the country information is consistent with the applicant’s claims.

2. In 2007 the Taliban fighters in North and South Waziristan agreed to a peace deal with the government of Pakistan which involved them not crossing into Afghanistan via those two provinces.[4] In an effort to circumvent the treaty, Taliban fighters attempted to enter Afghanistan through Kurram Agency. Turi Shia tribesmen formed militias to prevent the Taliban safe passage, which resulted in hundreds of Taliban fighters entering Kurram to both ‘dislocate the Shia’ and gain access into Afghanistan; the ensuing fighting was, reportedly, ‘extremely brutal’.[5] A May 2011 joint-report by the Institute for the Study of War and Critical Threats describes how the conflict in Kurram seriously affected the livelihoods of those living in Kurram, and Shia populations in Parachinar in particular:

   The intense fighting resulted in the closure of the Thall-Parachinar road. The road is the main artery running through Kurram that connects all parts of the agency to Peshawar and the rest of Pakistan. The road is also the main supply route to Kurram Agency, especially upper Kurram. The closure of the road during the skirmishes resulted in a severe shortage of commodities and prevented the transportation of the wounded to hospitals in Peshawar when adequate care was not available locally. Fighting eventually petered out by April 15, following a ceasefire negotiated by the warring tribes and a military-imposed curfew throughout the main towns. The road between Sadda and Parachinar remained closed to traffic, however, effectively hemming in the Shia in upper Kurram.

   The use of the Thall-Parachinar road is a defining issue for tribes in Kurram Agency, especially for the Shia tribes in upper Kurram. The closure of the road became a major grievance for the Shia community as the conflict in Kurram progressed. Sunni groups and Taliban militants fighting the Shias realized the strategic importance of the road to the Shias of upper Kurram and used their control over the road as a weapon in their efforts to pressure the Shias into capitulation.[6]

   [4] Fishman, B 2013, ‘The Taliban in Pakistan: An Overview’, Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.361-364

   [5] Fishman, B 2013, ‘The Taliban in Pakistan: An Overview’, Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.361-364

   [6] Dressler, J & Jan, R 2011, The Haqqani Network in Kurram: The Regional Implications of a Growing Insurgency, Institute for the Study of War & Critical Threats, May, p5 < <CIS 22731>.

3. Reports indicate that Shia groups blame the government for either not doing enough to defeat the militant groups or actively supporting them. A March 2011 CTC Sentinel report dealing with the Haqqani Network’s presence in Kurram Agency states that ‘some allege’ that the group, which is allied to the Afghan Taliban, was able to find sanctuary in Kurram in 2007 with the ‘aid of the Pakistani security establishment.’[7] In a February 2012 article published in the Pakistan daily English-language newspaper The Daily Times, the author states that people in Parachinar believe that the ISI is actively supporting Sunni militants.[8] The author claims that this belief is born from the fact that militancy has increased since local Shia militias ceded responsibility for security to the government:

   I will today confine myself to the recent deadly suicide bomb explosion in Parachinar that killed 43 Shia Pashtun. There is something strange about this explosion. As long as the security of Parachinar was in the hands of the local Shia volunteers, no terrorism happened in the city. Some three months back, the security was taken over by the FC and the Pakistan Army and this deadly suicide attack happened. Why is it that civilian volunteers could prevent acts of terrorism but the army and the FC could not? Is something wrong with the training of the security forces? No one in Parachinar believes so. The dominant perception is that the ISI has deliberately attacked the Shia-dominated city through Fazl Saeed, the Taliban commander considered to be operating under direct orders from the ISI.[9]

   [7] Dressler, J 2011, ‘Haqqani Network Influence in Kurram and its Implications for Afghanistan’, CTC Sentinel, Vol. 4, Issue 3, Combating Terrorism Centre, US Military Academy, p.12 < <CIS 23410>

   [8] Taj F 2012, ‘Pushing Kurram to invite Foreign Intervention’,  The Daily Times, 25 February < <CIS 317242>

   [9] Taj F 2012, ‘Pushing Kurram to invite Foreign Intervention’, The Daily Times, 25 February < 23/07/2019 <CIS 317242>

4. Brian Fishman, a counterterrorism research fellow at the New America Foundation,[10] states in his contribution to the 2013 book Talibanistan that ‘the Pakistani government has done little to control the sectarian violence in Kurram, prompting many Shia to accuse it of intentionally stoking the violence’.[11]

   [10] The New America Foundation is a US based public policy think tank which describes itself as ‘non-profit’ and ‘non-partisan’ <

   [11] Fishman, B 2013, ‘The Taliban in Pakistan: An Overview’, Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.361-364

5. Despite military operations from 2011-2013 and the presence of military checkpoints, reports indicate that TTP militants remain active in Lower and Central Kurram. The situation is further complicated by the Islamic State’s announcement of a Khorasan Shura, encompassing both Afghanistan and Pakistan. IS named Hafiz Quran Daulat commander of its Kurram division, where, according to a leaked Balochistan government report, it has undertaken a ‘massive’ recruitment drive.[12]

   [12] Roul, A 2015, ‘‘Wilayat Khurasan’: Islamic State Consolidates Position in AfPak Region’, Terrorism Monitor, Issue 13, 7 April < Accessed 5 May 2015 <CXBD6A0DE3994>; Roggio, B 2015, ‘Islamic State appoints leaders of 'Khorasan province,' issues veiled threat to Afghan Taliban’, The Long War Journal, 27 January 

6. Recent media reports confirm that in February 2017 Daesh has threatened to target specific sects in the FATA and have distributed leaflets in the Pashto language in the border areas of Kurram Agency. The leaflets claimed that the followers of Daesh are to launch activities in the tribal areas. [13]

   [13] "Timeline of Daesh in PAK", Geo TV, 03 March 2017, CISEDB50AD427

7. While much of the TTP’s activity in Kurram has involved attempts to secure safe corridors for moving people and weapons to various locations, including Afghanistan and Khyber Agency, a sectarian discourse is nonetheless present.[14] For example, when claiming responsibility for a July 2013 attack in Parachinar, which killed 57 people and injured 180, the TTP group Ansar-ul-Mujahideen declared that ‘the target was the Shia community. Shias are the enemies of Islam and we will continue to attack them in future’.[15]

   [14] For the TTP’s interest in corridors to the Tirah Valley and Afghanistan see, for example: Munir, A 2012, ‘The Fight for Kurram’s Jogi Mountains’, The Express Tribune, 9 February < <CX0D38E8E20238> 

   [15] Parachinar Targeted by Taliban’ 2013, Newsweek, Source: Agence France Presse, 27 July < <CX319322> 

8. The spokesman also suggested that his group was targeting the Turi because of sectarian related violence in other parts of the world, stating: ‘we have planned more similar attacks against the Shia community in Pakistan to seek revenge of the brutalities of Shia on Sunni Muslims in Syria and Iraq’.[16]

   [16] Afzal, A and Shah, S Y 2013, ‘Twin suicide blasts kill 48 in Parachinar’, The News International, 27 July <

9. The Tribunal finds that terrorist attacks continue to be directed the Shia community in Kurran Agency. Recent media reports confirm that a bomb blast skilled 22 people and wounded 90 others in a predominantly Shia area of Parachinar, in January 2017. LeJ claimed responsibility for the attack. [17]On 31 March 2017 the Pakistan Taliban claimed responsibility for a bombing near a Shia mosque in the city of Parachinar which killed at least 22 people and 70 wounded.[18]

   [17] Deadly blast rocks market in Pakistan’s northwest; Al Jazeera 21 January 2017, Pakistan Taliban claims bombing of mosque, 2017 AAP, 31 March >

   The rise of sectarian violence in Pakistan is evidenced by the February 2017 the terrorist attacks on the Lal Shahbabaz Qalandar shrine in Sehwan which killed at least 88 people.[19]

   [19] >

   The South Asia Intelligence Review provides the following information regarding the rising threat of sectarian violence in Pakistan linked to Islamic State:

   Islamic State has, indeed, made deep inroads in Karachi and across Pakistan. General John Campbell, the Commander of the Resolute Support Mission, the new US and NATO mission in Afghanistan, warned on January 18, 2015, that IS was recruiting in Afghanistan and Pakistan: "We are seeing reports of some recruiting. There have been some night letter drops, there have been reports of people trying to recruit both in Afghanistan and Pakistan...”  Exploiting old faultlines of Shia-Sunni rivalry and the anti-Shia sentiment in Pakistan that has been legitimized by statebacked orthodox Sunni ulama and their religious organisations virtually since the creation of Pakistan, the IS has easily found sympathizers, supporters, and fighters in its ‘global war’ against Shias.

   Meanwhile, sectarian attacks in Pakistan continue unabated. According to partial data compiled by South Asia Terrorism Portal (SATP), the country has recorded at least 2,988 sectarian attacks, resulting in 5,119 deaths and 9,745 persons injured, since 1989. 2015 has already recorded 27 such incidents, with 199 fatalities and 242 persons injured (all data till May 17, 2015).

   Out of 4,116 persons killed in such attacks since 2001, 2,461 were identified as Shias. Among them, at least 72 Ismailis (including, Bohra Ismailis, who are a sub-sect of the Ismaili Shias) have been killed in 15 such attacks since 2012.[20]

   [20] South Asia Intelligence Review: Weekly Assessments & Briefings Volume 13, No. 46, May 18, 2015 (CISEC96CF1881)

10. The above information is further supported by reports that Islamic State of Iraq and Syria has created a “strategic planning wing” on how to wage war against the Pakistan military and is trying to join forces with local militants. Specifically, it is reported that ISIS aim is to stir up sectarian unrest by dispatching the local militant group Lashkar-e-Jhangvi on offensives against Pakistan’s minority Shia Muslim community. It is reported that ISIS claims to have recruited 10,000 to 12,000 followers in tribal areas on the Afghan border.[21]

    [21] >

    The Tribunal has also had regard to recent media reports by The Nation titled “Spectre of Sectarianism still chasing Kurram residents” dated 28 September 2014 which provide an insight into former Kurram Agency residents who have fled their home area and are residing in Islamabad. The report documents that the Shia community who fled sectarian tension in Parachinar and settled in Islamabad are still at risk as their family members receive threatening calls from unidentified people. Its reported that residents form Kurram Agency who live in Islamabad have hired private security guards to protect their families when male members are working during the day.[22]

    Findings

    [22] >

    The applicant presented in a manner the Tribunal perceived to be truthful and credible, and his evidence was consistent with the country information applicable to his particular circumstances. The Tribunal has decided to wholly accept the applicant’s evidence.

11. The Tribunal finds the applicant to be a citizen of Pakistan and that he presently has no existing right to enter and reside in any other country. The Tribunal finds that Pakistan is the country of reference for the purpose of the Refugee Convention. The Tribunal has considered whether the applicant could return to his home area of Parachinar, Upper Kurram Agency in the province of the FATA, Pakistan. The Tribunal accepts the applicant is a Shia Muslim of Pashtun ethnicity and a member of the Turi tribe.

12. The Tribunal has had regard to the country information and finds that violence against Shias in FATA has strategic, tribal and sectarian dimensions. The Tribunal finds that Shias in FATA particularly in Kurram (Parachinar) face a real risk of persecution due to their Shia religious beliefs. The Tribunal finds that Turi Shias, by virtue of their geographic concentration in upper Kurram, are more easily targeted in sectarian violence than other Shias in the region. The Tribunal also finds that the applicant’s evidence needs to be seen in the recent historical context of the Taliban’s conflict with the Turi tribe in the Kurram Agency. The Tribunal finds that the objective of the Taliban is to persecute the Turi people not only due to their Shia Muslim faith but also in order to seek retribution for recent military conflicts.

13. The Tribunal finds that if the applicant were to return to his home area in the reasonably foreseeable future there is a real chance he would be subjected to serious harm amounting to persecution on account of his Pashtun Turi ethnicity (race), his Shia Muslim religion and his imputed anti-Taliban political opinion. The Tribunal therefore finds the applicant’s fear of persecution is well-founded.

14. The persecution feared by the applicant emanates from non-state insurgency groups opposed to the Pakistan government (notably, the Taliban). Country information confirms that state protection from the Pakistan government in the applicant’s home area remains weak, unpredictable and vulnerable to significant corruption.

15. According to the UNHCR Guidelines[23], law enforcement authorities are reportedly unable or unwilling to protect members of religious minorities, including Shias. Sunni militant groups, such as the banned Lashkar-e Jhangvi, reportedly operated with impunity, including in areas where State authority is well established, such as Punjab province and Karachi. In light of the foregoing, UNHCR considers that members of the Shia community, particularly those in areas where Taliban-affiliated groups are active, such as the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion and/or (imputed) political opinion.

    [23] United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International protections needs of members of religious minorities from Pakistan, 14 May 2012 (UNHCR Guidelines)

16. The US Department of State reports that the Pakistan police often failed to protect members of religious minorities, including Shias, although there have been improvements.[24] The US Commission on International Religious Freedom (USCIRF) also assesses that despite government efforts and positive rulings by the Supreme Court, the government failed to provide adequate protection to targeted groups or to prosecute perpetrators or those calling for violence.[25]  The Tribunal concludes the applicant will not be able to access effective protection, and a real chance of serious harm remains should the applicant return to his home province.

    [24] US Department of State, Pakistan – Country Reports on Human Rights Practices 2015 (13 April 2016) section 1(d).

    [25] USCIRF Annual Report 2015- Pakistan, 30 April 2015, p.2.

17. In view of the unstable security situation in the applicant’s home area the Tribunal finds the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds, based on the country information, that the applicant would not be able to avail himself of effective state protection against such harm.

18. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.

19. The Tribunal has considered whether there are other areas of Pakistan where the applicant could safely relocate. Taking into account the applicant’s profile and the country information on the level of sectarian violence throughout much of Pakistan, the Tribunal is not satisfied he would be free from a well-founded fear of persecution in the provinces of Sindh, Punjab, Khyber Pakhtunkhwa, or FATA.  In relation to Gilgit-Baltistan, the Tribunal notes the advice from DFAT that there is a large Shia population (39 percent) and low levels of generalised and sectarian violence in this province.  The Tribunal is not satisfied that the applicant’s profile is such that he will be followed wherever he goes, and given the low level of sectarian violence in the province, he many not face a real chance of serious harm from the LeJ or other such groups in this province.

20. However, if the province of Gilgit-Baltistan is a safe area for the applicant, the Tribunal is not satisfied it would be reasonable, in the sense of practicable, for the applicant to relocate there.

21. The Tribunal notes the delegate found the applicant to be a single healthy man with no visible intellectual or physical disability. The delegate found that in the applicant’s case it was reasonable for him to relocate, given his level of education, past work experience and ability to speak, read and write several languages. 

    Applicant’s mental health

22. The Tribunal questioned the applicant about his mental health at the hearing. The applicant said he was assessed by a psychologist when he first arrived in Australia.

23. It was apparent to the Tribunal that the applicant had suffered significant mental trauma as a consequence of his journey to Australia and his experience in Pakistan. The applicant also submitted that the ongoing uncertainty of his current migrations status and litigation had an impact on his mental health.

1. The Tribunal was provided with the following evidence relevant to the applicant’s mental health which was not before the delegate and the RRT at the first hearing.

   ·     Psychological report dated [in] April 2017 prepared by [Ms A], Counselling Service Manager, [Organisation 1]

   ·     History of the applicant’s attendance at [Organisation 1].

   ·     Applicant’s statutory declaration dated [in] April 2017

2. The following is a summary of the applicant’s mental health history since arriving in Australia:

   ·     [In] May 2015 the applicant met with [a doctor]. He presented with [symptoms]. The applicant commenced to take [medication]. The applicant was referred to [a] psychiatrist.

   ·     [In] May 2015 the applicant had initial consultation with Psychiatrist [name]. The applicant presented with 3 to 4 month history of [symptoms]. The applicant spoke of distressing experiences in Pakistan and seeing his family members and others being killed and the experience of traveling aboard a boat to [Australia]. The applicant was diagnosed with Moderately Severe Depression and advised to continue taking mediation.

   ·     [In] June 2015 the applicant was seen by a second [psychiatrist]. He was diagnosed with [diagnosis] and the psychiatrist recommended increasing his dose of [medication].

   ·     [In] October 2015 [date] December 2015 the applicant was seen by [Dr B] and presented with [symptoms]. He was prescribed [medications].

   ·     [In] March 2016 the applicant was seen by [Dr B] and informed staff that he was admitted to [a] Hospital in the previous month with a [medical condition]. He reported that this was the fourth occasion he experienced [medical condition].

   ·     [In] March 2016 the applicant presented to the health program in a distressed state and was referred to [a] team within [Organisation 1] to undertake a risk assessment and for further support and assistance.

3. In her psychological report dated [in] April 2017, [Ms A] states that the applicant attended a session with his counsellor/psychologist [in] June 2015. He was assessed with a [assessment]. The psychologist informed [Organisation 1] Health Program who agreed to try and keep the applicant engaged through is GP and psychiatry appointments.

4. The Tribunal notes however that the applicant has not continued to be engaged with this GP or psychiatrist as was encouraged by [Organisation 1] Health Program and his mental health history was not brought to the attention of delegate or the RRT. [Ms A] states in her report to the Tribunal that according to the DSM-V “avoidance of or efforts to avoid distressing memories, thoughts or feelings about traumatic event(s)” is a symptom of PTSD. [Ms A] states that such symptoms can often explain why people do not engage in ongoing psychological intervention.  [Ms A] concludes in her current report that she has concerns that if the applicant was faced with the prospect of return to Pakistan his levels of psychological distress would increase and he would require ongoing mental health intervention to manage his symptoms.

5. The Tribunal has also had regard to the representative’s submissions dated 19 April 2017 regarding the following case law and country information relating the access of mental health treatment in Pakistan.

6. In MZYLH v Minister for Immigration & Anor [2011] FMCA 888 (17 November 2011), the court dealt with a case where there was evidence that the applicant was a person who was suffering from depression and post-traumatic stress disorder. The court said at [137]-[138]:

   The Tribunal is required to consider the practical realities facing a person in determining whether it is reasonable to expect them to relocate. Those practical realities are not limited to matters related to persecution for a Convention reason:

   A well founded fear of persecution for a Convention reason having been shown, a refugee does not also have to show a Convention reason behind every difficulty or danger which makes some suggestion of relocation unreasonable.

   The issue is not whether the Applicant might be denied treatment for his mental illness for a Convention reason but whether he could relocate within Pakistan and maintain himself given the state of his health. As Branson J said in NAIZ, the approach set down in Randhawa requires the Tribunal to consider the practical realities facing the Applicant to consider how, in a practical sense, he could reasonably be expected to relocate.

7. With respect to the mental health services in Pakistan, Aljazeera recently reported with respect to Pakistan’s Mental health system notes:

   Pakistan has one of the lowest mental illness patient-to-doctor ratios in the world. In a seminar held earlier this year in Karachi, a prominent Pakistani doctor revealed that Pakistan has only 380 trained psychiatrists — meaning that there is roughly one psychiatrist available per half-million people. The result is that even when patients fighting something as common as depression or anxiety recognize their symptoms, overcome the stigma, gain the support of their families and start looking for medical help, there simply isn’t much help to be had.[26]

   [26]  

8. The WHO reported in the 2011 Mental Health Atlas:

   The majority of primary health care doctors and nurses have not received official in-service training on mental health within the last five years. Officially approved manuals on the management and treatment of mental disorders are not available in the majority of primary health care clinics. Official referral procedures for referring persons from primary care to secondary/tertiary care exist. However, referral procedures from tertiary/secondary to primary care do not exist.[27]

   [27]

9. More recently it was reported by DAWN  on 6 April 2017:

   In today’s Pakistan, scores of people seem to be leading perfectly normal, happy lives. Scratch the surface, however, and what lurks beneath for many is a host of psychological issues they’re battling with on a daily basis. Unfortunately, there is a deep-seated stigma attached to mental disorders in Pakistan. It is not uncommon for the word ‘psychology’ to be associated with madness; it is, therefore, a taboo subject in many households. Irrespective of what socioeconomic rung one hails from, it is typical for a person to remain quiet about their mental illness for fear of being ostracised.[28]

   [28]

10. The Tribunal has taken into account the rural nature of this province, such that finding employment will likely be difficult, the dangers in travelling to Gilgit-Baltistan[29], and the mental health issues the applicant would face in accessing appropriate care in this province[30].  Taking all of these factors into account, the Tribunal finds in the applicant’s case relocation is not practicable, and is not reasonable.

    [29] See the DFAT Thematic Report Shias in Pakistan at 4.40 to 4.42 on travel security in Pakistan.

    [30] See Shias in Pakistan at 3.14 to 3.15

11. In conclusion, having regard to the applicant’s personal profile, the growing presence of extremist groups throughout Pakistan and the applicant’s psychological health the Tribunal finds that it is not reasonable for the applicant to relocate to any other part of Pakistan to avoid his risk of Convention based persecution.

12. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Christopher Smolicz
    Member

    
    
    

<CX318841>