1621948 (Refugee)

[2021] AATA 703

1621948 (Refugee) [2021] AATA 703 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1621948

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Jane Marquard

DATE:2 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 February 2021 at 3:43pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – race – Turi – religion – Shia – imputed political opinion – opposition to the Taliban – Anjuman e-Hussainia – particular social group – family of a Malik – Taliban insurgent attacks – religious discrimination – internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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

OVERVIEW OF THIS APPLICATION FOR REVIEW

1. The applicant is [an age]-year-old man from the Islamic Republic of Pakistan (Pakistan). He was born in Parachinar in Kurram Agency.

2. The applicant arrived in Australia [in] August 2013 as the holder of a [Student visa], which ceased on 15 March 2016. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 6 September 2015.

3. A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 28 November 2016.

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

5. The applicant has made claims for protection based on his Turi ethnicity, his Shi’a faith, his political views and his father’s former position as a Malik and Shi’a community leader.

6. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.

7. These criteria, along with the evidence, findings and reasons, are discussed in more detail below. The Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW AND PRINCIPLES OF REVIEW

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). 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.

   Refugee criterion

9. 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.

10. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act.

11. Under s.5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

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 the visa if there are 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 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 Attachment A to this decision.

    Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    The applicant must satisfy the statutory elements

14. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

    CLAIMS AND EVIDENCE

    The evidence taken into consideration

15. In coming to a decision, the Tribunal has taken into consideration information provided to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Pakistan.

    Summary of evidence before the Department

16. The applicant made claims and provided information in his application forms and supporting documents. The applicant also provided evidence at an interview with the Department on 20 April 2016. A summary of his evidence to the Department follows.

    Personal particulars

17. The applicant stated that he is from the Pathan, Turi ethnic group. He is a Shi’a Muslim.

18. He comes from [a location in Town 1] in the Upper Kurram Agency.

19. He speaks Urdu and English.

20. His parents, [and other family members] live in Pakistan. The applicant is the youngest child. One of his [siblings] operates a [business] in Peshawar, where he lives. [One sibling] works for [a named employer]. [Another sibling] lives and works in [Country 1] where he has been since 2004. [Other siblings] are married and live with their families [a specified distance] from the rest of the family in Parachinar. His family are all well-educated.

21. He finished secondary school in [year] and then started but did not finish a [tertiary course] at [a named] University, Islamabad. He attended [between specified years]. He recommenced his studies at the [a named Australian university] where he enrolled in a [specified course].

    Claims

22. The applicant claims to belong to a minority ethnic and religious group, the Turi, who are Shi’a Muslims. He claims that the Turi, particularly educated Turi, are targeted by Sunni extremists. He said that the Turi are known for resistance against the Taliban and other Sunni extremists. When the Taliban tried to infiltrate Pakistan after the collapse of the Taliban regime in Afghanistan in the aftermath of the Coalition forces’ action against the Taliban, they needed a safe path to move into Pakistan’s border areas. However the elders of the Turi, such as the Maliks, vehemently opposed this, although the Sunnis including Bagash, welcomed the Taliban, and provided logistical and material support. As a result of the resistance of the Turi, the Taliban cadres found it difficult to infiltrate into the border villages, and this angered the Taliban and the Sunnis residing in Kurram Agency, particularly Upper Kurram Agency. As a result, Sunnis from Kurram Agency moved to other parts of Pakistan including Lower Kurram Agency and have continued to display hatred towards Turis.

23. The applicant claims that the Taliban is angry with him and his family. He has been a tribal representative since the 1990’s.  He said that he belongs to a well-known Turi family. His father is a Malik and was the executive member of Anjuman e-Hussainia [between specified years]. At that time there were 12 elders in the Anjuman e-Hussainia. His father played an important role in mobilising the Turi to wage war against the Taliban in the 2002 conflict. His father was close to the Turi Shi’a leader [Leader A], who was killed by ISIS. The Taliban cadres therefore consider his family as an enemy.

24. He claims that his father is also an elder and member of ‘Jirga’, who played a leading role in a land dispute between Turis and Sunnis at [Village 1].

25. He said that his father receives threats ‘all the time’. His father is known to the Sunni Anjuman and is on the ‘A-list’ of people known to the Taliban and Sunnis. The Sunni Anjuman is not a written list. His father has never left Parachinar and never goes anywhere alone. His father has had multiple attempts on his life.

26. The applicant was at university [between specified years]. He said that he was a member of Imamia Student Organisation (ISO). He said that he was [in a particular position] from [between specified years]. He helped organise protests in Islamabad against the killings of Shi’as. He said that ISO did not face problems from the Taliban or Sunnis, but there were sometimes fistfights with the JI students.

27. He claimed that in July 2011 he travelled to Parachinar by bus to visit his family for 20 days. He had to travel through Peshawar to return to Islamabad. When he reached [Town 2] to catch a connecting bus to Peshawar, two men with their faces covered started firing towards him. He fell and injured himself whilst running away. He hid under a bus. The ‘terrorists’ escaped when they saw a passing army vehicle. The army officers questioned him about the incident and he gave a statement to the police. He suspects that he was targeted because of his religious background and his father’s profile. He told the police but they did not do anything. He said that the authorities cannot protect him because they have connections with Sunni extremists. He submitted that the Pakistani government has not taken any serious actions and have failed to provide security to the Shi’a community.

28. His brother, [Brother A] was forced to abandon his business in Peshawar due to threats from Sunni extremists.

29. He said that all Turis are Shi’a and the Taliban have threatened to eliminate Shi’as from Pakistan. He said that ISIS had also made statements that they would kill Shi’as.

30. His family have attended [a named] Imambargah all their lives. The Imambargah was attacked in 1996 and 1998.

31. The applicant said that he moved to Islamabad for his safety. However he did not feel safe because of the Taliban activities in Islamabad. He argued that the presence and influence of Sunni extremists extends throughout Pakistan. Country information was provided to support his claim that Sunni Islamic terrorist organisations operate throughout Pakistan and specifically in Kurram Agency.

32. The applicant claimed that his father advised him to study abroad until the situation calms down in Pakistan. He began planning in 2013 and chose Australia as the educational opportunities were better than Canada or the USA. He wanted to complete his [degree] and apply for permanent residence.

33. The applicant arrived in Australia in 2013. He claimed that [in] June 2014 he received news that his cousin, [Relative A], was killed by Sunni extremists. He was on a van on the way to Parachinar when the extremists boarded and started checking passengers’ Pakistani identity cards. [Relative A] denied being a Shi’a but the terrorist found the ‘mark on his back’ and killed him. The incident was reported by the other passengers.

34. He fears that if he moves to other parts of Pakistan, he will easily be identified as a Turi from Parachinar, from his identity card and his Urdu accent. He fears that due to his family’s profile, his ethnicity, religious and educated background, he will be targeted and harmed in Pakistan. He also fears that he will be targeted for his imputed political opinion against the Taliban. He also claimed to fear harm as a member of the particular social group of ‘young men from the Turi tribe’, ‘family who is actively anti-Taliban’ and a ‘Turi male educated in the West’.

35. He referred the Department to country information about human rights abuses and humanitarian crises in north-western Pakistan, and persecution against religious minorities. He said that he does not believe that the National Action Plan (NAP) to combat terrorism would have any impact on the security situation in the country. Country sources referred to by the applicant’s representative highlighted attacks by Sunni extremists. The representative submitted that these reports confirm that the Sunni extremists are capable of launching attacks, that Pakistan faces serious security challenges, that the Islamist fundamentalist movement remains resilient including Taliban-linked terrorism, that they benefit from patronage of political parties and support of the security establishment, and that they operate from sprawling complexes in Punjab. Articles also suggested the authorities are unwilling to protect Shi’as and instil fear in the community and further, that Sunni extremists act with impunity. Articles also referred to the Pakistani state trying to cleanse areas of Shi’a dominance by using Sunni militants of banned outfits as proxies.

36. Country sources were provided in regard to ISIS which referred to loyalists setting up a base in Karachi, and to Hafiz Saeed Khan, a former leader of the Pakistani Taliban who was now at the helm of IS in Khurusan. One article suggested that DAISH had gathered 10 to 12 thousand followers from Hangu and Kurram Agency. Another article suggested Iran had increased its use of Pakistani Shi’a fighters.

37. It was submitted that the applicant could not relocate due to presence of anti-Shi’a groups throughout Pakistan and would face practical difficulties doing so. The applicant’s representatives referred to country sources which reported on killings of Shi’a people in various areas of Pakistan. It was submitted that Sindh had experienced an exponential rise in incidents of violence, in Punjab extremist organisations continued to target Shi’as through registering of legal cases against Shi’a and hate campaigns, and in Khyber Pakhtunkhwa target killings had increased. It was submitted that Sindh and Balochistan witnessed persistent targeted killings and bomb attacks against the Shi’a community and minority communities continued to suffer persecution in 2016.

38. The applicant said that he continues to be involved in Shi’a religious activities including attending Muharram. He participated a protest in [Australia in] 2016, against the killing of Shi’a scholar cleric Nimr al-Nimr by the Saudi authorities. 

39. The applicant also provided a list of links to country information about Pakistan and a number of documents, which are set out in Attachment B.

    Summary of evidence before the Tribunal

40. The applicant provided new written submissions to the Tribunal and appeared before the Tribunal on 23 November 2020 to give evidence and provide arguments in support of his review. He also provided a number of documents, which are summarised in Attachment B. The applicant was represented by [a named agency]. An interpreter assisted the Tribunal at the Tribunal hearing. As the Tribunal hearing was held via Microsoft Teams video, the applicant and interpreter confirmed that they could hear well.

41. The Tribunal noted his updated psychologist’s report dated 10 November 2020 and asked the applicant about the current status of his mental health.  He said that he is under stress and was taking mirtazapine for anxiety. He said that the benefit of the medication is he sleeps well and is calm. He confirmed that he felt well enough to give evidence at the hearing and did not have any side effects from the medication. He said that he is seeing the psychologist either weekly or sometimes monthly for treatment.

42. A summary of the evidence before the Tribunal follows.

    Confirmation of personal particulars

43. The applicant confirmed that he is from [a location in Town 1] in the Upper Kurram Agency in the Federally Administered Tribal Area (FATA).)  His mother is living in Pakistan but his father recently passed away. His father was a businessman. He had a [business] and was a Malik. He operated his business in Parachinar. His family lived in the family home, about three kilometres from the business in Parachinar, in a village. His mother looked after the children. She currently lives at the family home with [some family members].

44. [A number] of his [siblings] are living in Pakistan, one lives in [Country 1] and the other in [Country 2]. Of the [family] in Pakistan, two are in Kurram, working in [an industry] and in the [product] business, and one in Islamabad, working as [an occupation]. [Other family members] are married and living in the same region, and two are living at home. [They] are not working.

45. In post-hearing submissions he explained that his brother, [Brother B] lives in [Country 1] running a [service] business. He has been there since 1996. When living in Parachinar he got into fights with both Shi’as and Sunnis and was ‘crazy’. A couple of times he abused Sunnis involved in the land dispute with whom his father was negotiating. Later on some unknown people came into the shop and wanted him to leave with them. The applicant said that he did not know the details but his brother undermined his father’s work as a Malik, which was why he was sent away. His brother, [Brother C] went to [Country 1] in about 1998; however he was kicked out by the government because he is a Shi’a. He returned to Pakistan for four years and then went to [Country 2]. He said that he could not live with all the troubles in Parachinar. His brother [Brother D] lives in Islamabad, even though it is not safe for him there and the family worry about him. He wanted his own job. His wife and [child] live with his family in Parachinar.

46. His grandparents are deceased, but he has [other relatives]. He does not have family living in other parts of Pakistan.

47. He went to primary school in his hometown, then to Peshawar for secondary school and Islamabad for university. He did not finish his degree as he transferred to Australia with credits.

    Turi ethnicity

1. The applicant said that he is from the Pathan, Turi ethnic group. He said that the Turi community has an important role. Turis are ‘hundred percent Shi’a’, and come from Kurram. Asked if they have specific traditions that differentiate them from other communities, he said that the dialect, accent and speaking style are different and they also have different ways of practice. They are identified as Turi by the way of speaking. Further the Shi’a people ‘believe more in the Karbalagh incident’ and have processions, which can also comprise protests.

2. He was asked if his family were religious. He said that they ‘proceed by processions and do all the regular prayers’. The prayers were five times a day, which he said was ‘obligatory’. He attended the [named] Imambargah. They attended regularly, either weekly or monthly.

   Elaboration on claims for protection

3. The applicant confirmed that the mosque his family attended was targeted in 1996 and 1998. Since then they have practised safely there.

4. The applicant said that his father was appointed as a Malik because of his activities and the way he led the tribe. He said that the Malik was not an inherited position. His grandfather was not a Malik. He said that there was no family that was the ‘Malik family’. He does not know who appointed his father. However his brother is now the Malik.

5. His father’s role was to resolve local disputes and to mediate between parties in local and government affairs. His father was a member of the central Imambargah management and had been there for two years. His father participated actively in a land dispute between the Sunnis which had started in 1970. There was a conflict and Sunnis were pushed out of the area.

6. His father is also an elder and member of ‘Jirga’, who played a leading role in a land dispute between Turis and Sunnis at [Village 1]. He said that the parties split at a local level, and there was a jirga with the Taliban concerning the premises in which they operate.

7. His father was executive member of Anjuman e-Hussainia [between specified years]. He said that this organisation played a leading role in the agency in regard to local issues. His father was elected twice. Each of the roles his father had were connected. Meetings would be held of Anjuman e-Hussainia and it might be resolved to refer issues to the jirga. In both of these roles, he was involved in a land dispute between the Taliban and locals, and Anjuman e-Hussainia was called in to resolve this. His father was close to the Turi Shi’a leader [Leader A], who was also a member of Anjuman e-Hussainia. [Leader A] was killed by ISIS.

8. He said that the activities of Tehreek-e-Taliban in his home area were increasing day to day. They have been attacking people and beheading individuals on the basis of the religion. His family was anti-Taliban as they are Shi’a and Turi, and his father was a Malik and his brother is now entrusted with the position. They had a [product] and [service] business, and were a strong family and were known for this reason.

9. The Tribunal asked the applicant at the Tribunal hearing how his family has been able to live in the region without harm, to conduct businesses and get married and go about their lives. He said that they have no choice. His brother feels that it is a shame for them not to live there as their father is a Malik. However, at any time ‘something could happen’. His father did not have threats on his life or suffer physical harm, but he told the family that the he was leading the community and there were significant risks that went along with this position as he was well known to the Taliban and Sunnis. He said that other family members did not suffer any harms or threats. However there was no guarantee that this would not happen, it could happen any time. In addition to the presence of the Taliban in the region, ISIS,  Lashkar-e-Jhangvi and Sipah-e-Sahaba and Al Qaeda have a presence. Recently some Taliban groups have splintered and joined them. In written submissions after the hearing, he said that his family have lived in daily fear of harm for decades. Some periods are worse than others but the fear of being targeted by the Taliban or other Sunni extremists never goes away. He said that one way they deal with this is to live restricted lives. They have very limited activities and do not go out after dark.

10. He also stated that it is very hard to leave Parachinar as this is where the real dangers exist. He said that for many years the Thali road was closed and they stayed isolated in their communities. When the Thali Road was closed, their deliveries of [product] were stopped. These days, the road is open but it is very dangerous for Turis if they are unprotected and outside their villages and Parachinar. He said that they are not allowed to keep the [product] in the shop. The army insists they must store it in their depot so his brothers travel there to collect it. The army constantly harass his brothers and prevent them carrying out their business. They want to shut the business down by accusing his family falsely of bringing in illegal [products]. Most people in [Upper Kurram] rely on [their products], so the army controls them through [this product] supply. He believes the army have their own agenda in the area, which is not to protect Shi’as.

11. He claimed that his family all live together including his [specified relatives]. [A number] of his brothers live in one big house with the children. Their ‘life is family’. His mother and [other family members] rarely leave the house and if they do it is a Shi’a tradition that they are escorted by husbands or brothers.

12. He said that when his father was alive, he was never alone. If he was out of the house, one or two brothers accompanied him. Their village was very close to Parachinar city, so they did not need to travel far to the shop. In the months leading to his death, he had to travel to hospital in Islamabad, and two of his brothers and one of his brothers-in-law would go and they would take it in turns to watch over him. It would also not be easy to target a Malik in Parachinar. Maliks are important people and the tribe protected him. Pashtuns believe in revenge.

13. He said that his brothers carry weapons to stay safe. His family had two pistols and two AK47s. His brothers carry pistols. The local community protects Parachinar. The weapons are to defend themselves against the Taliban. Almost every Turi household in Parachinar has weapons and almost everyone carries them. He said that he mentioned this in his first interview with the Department but had felt reluctant to mention it again as he was worried it would suggest bad character. They have licences for their weapons. However it is easy to get weapons and licences in Pakistan.

14. The applicant confirmed that he was a member of Imamia Student Organisation (ISO). ISO had the objective of conducting religious programs and participating in protests. If Shi’as were targeted, then students would protest. He decided to get involved because Shi’as had limited opportunities. Seventy percent of the Shi’a students at his university became members automatically. He attended many protests. He was [in a named position] informing students if there were bomb blasts and protests. He would let them know where protests were taking place.

15. He said that he feels specifically discriminated against because he is a Turi and a Shi’a. He claimed that if you are recognised as a Shi’a, then ‘they will say that you are infidel’. He said that they will ‘abuse you and hate you’. They say that Shi’as are ‘wrong and invalid’. He said that he experienced this many times when he was living in Pakistan. Sunnis would ask why he touched something saying ‘you are not Muslim’. If he prayed with open hands, some persons would comment that he was disrespecting the religion.

16. When living in Islamabad he did not feel safe from Taliban and ISIS. The comments and ostracism were the same as in Parachinar. He did not feel safe from violence.

    The shooting at the bus stop in July 2011

17. The applicant confirmed that in July 2011 he was going to Islamabad via Peshawar after visiting his family. He had to catch a bus and was waiting. Two people started firing at him, and he ran to save himself. He took refuge under the bus. Meanwhile an army convoy was passing by. When they heard the commotion they came over and asked what happened. Someone might have told them what happened. They searched him. The gunmen had fled. They asked him what happened. He said men had fired at him. He said he did not know why. He told them he was from Parachinar. Then they told him to leave and assisted him to get a taxi. He went to the police station and reported the incident. He also told his family on the way. Officers came to speak to him at the police station. They took him to a hotel with links to Parachinar and run by the imambargah.

18. He said he knew that he was the target as they pointed a pistol at him. He was asked why they would target him rather than targeting his father. He said that Pashtuns have a tradition that ‘if you are an enemy then the enemy will target the entire family’.

    Australia

19. He said that his father suggested that he travel to Australia to study, to ‘take him away from the disputes’. He said that he was interested in study.

20. He arrived in Australia in 2013 but did not apply for protection until 2015. He saw a lawyer the first month, but he did not guarantee he could get a visa. The Tribunal explained that he had legal professional privilege in relation to what his lawyer had told him. He said that his lawyer could not guarantee success and thought he would be barred and not be able to study or work and would lose his student visa. He did not know what to do. He was also told that if his student visa expired, he would get another one. He was not certain what he should do. His main objective was to complete his study.

21. [In] June 2014 he received news that his cousin, [Relative A] was killed by Sunni extremists. He was on a van on the way to Parachinar when the extremists boarded and started checking passengers’ Pakistani identity cards. His cousin denied being a Shi’a but the terrorist found the ‘mark on his back’ and killed him.

22. The applicant said that in Australia he has attended [Community Organisation 1] since he first arrived.

23. He has attended protests in Canberra, Melbourne and Sydney for Muharram. The most recent protest he attended was in 2019 in [location] in regard to Shi’a missing persons in Pakistan. He said that this has ‘been inherited in his DNA’ – that he must speak out against injustice. If he returned to Pakistan he would continue to speak out against injustice as he would have no other choice, but this would lead to his death.

24. He has been involved with [Community Organisation 1].

    Fears for return

25. The applicant said that his mental condition is such that he could not face any harm. He fears everything, and Parachinar is a place of fear for him. He fears the extremist groups and the Sunni in his region. He fears violence and the way the persons are killed and the fights and bombs.

26. He fears that due to his family’s profile, his ethnicity and religious and educational background, he will be targeted and harmed in Pakistan. He said that because of his education and Western background, he will be adversely targeted. His education is in [subject]. For that reason he cannot find a job in his area. Even if he stayed in Parachinar and did another business it would be noticed that he has come from Australia, and is a son of a Malik and he would be targeted.

27. The applicant said that he said that he wanted to add that in Parachinar the army is deployed. They have made the entire zone a military zone. They have occupied most of the businesses, including their business. If it was safe, then it would not be a Red Zone.

    Relocation

28. The applicant made written and oral submissions about relocation which are discussed in the findings below.

    Independent country information

29. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.

30. By way of background DFAT has provided the following overview:

    Pakistan is a Muslim-majority state which is ethnically and linguistically diverse. Outside of urban areas, Pakistanis tend to live in ethnically homogenous communities. Tehreek-e-Insaf (PTI), led by Imran Kahn, won a plurality of seats in the 2018 elections…Pakistan is classified as a lower middle-income country, with 39 percent living in multidimensional poverty in 2016. Corruption is widespread and systemic…The security situation is ‘complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes’, although there has been a downward trend over the last decade. Security and law enforcement personnel as well as political leaders and workers have been the target of the largest number of attacks. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP. In December 2014 the NAP formed to create a combined civil-military efforts to combat terrorist, separatist and criminal groups across Pakistan…Protracted terrorism, vulnerability to natural and humanitarian disasters, ethnic and religious tensions and periodic military interruptions of civilian rule, undermine stability and serve significant push factors for internal relocation and external migration.[1]

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

    DECISION OF THE DEPARTMENT

31. The delegate of the Department considered various country sources about Pakistan, finding that since the applicant left Pakistan, the security situation had improved. The delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm, on the basis of ethnicity, faith, or political opinion, or due to his family’s standing or his educational background.

    PRESIDENT’S DIRECTION AND THE COVID-19 PANDEMIC

32. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  The Tribunal also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

    ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[2] and

    ·that ‘generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[3]

    [2] At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

    [3]At [8.1].

33. The Tribunal exercised its discretion to hold the hearing via Microsoft Teams video due to the COVID-19 pandemic.  The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and that the hearing provided a real opportunity to be heard.

34. In making these alternative arrangements, the Tribunal had regard to the objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see and that he could hear and see the interpreter well. The Tribunal was able to interact with the applicant and his representative and all parties were able to maintain appropriate communication throughout the proceedings.

    FINDINGS AND REASONS

    Nationality

35. The applicant provided a copy of his Pakistani passport issued [in] 2013 which is valid [until] 2023. The Tribunal is satisfied that he is a citizen of Pakistan and that Pakistan is the ‘receiving country’ for the purposes of the legislation.

    Findings of fact

    The reasonable approach to fact-finding

36. When assessing claims the Tribunal must make findings of fact in relation to the claims. This may involve an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth[4], and as such is guided by the High Court and Federal Court of Australia in a number of decisions.[5]  In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [4] Fox v Percy (2003) 214 CLR 118

    [5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

37. This approach is supported in numerous judgments and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

38. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

39. The Tribunal has taken into account these commentaries and the range of matters which may affect testimony, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility[6], both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal has in this case also taken into consideration the report of [Psychologist A] dated 10 November 2020. This report did not fully comply with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence.[7] In particular, the psychologist did not provide details of her knowledge and experience, the letter of instruction she was asked to address in the report and details of facts and assumptions that informed the report. She also did not include details of any examinations, tests or other investigations upon which she relied, or details of literature or other material relied upon. There was no declaration of impartiality provided. While the fact that [Psychologist A] has not complied with the Guideline has impacted on the weight this Tribunal has afforded the report, the Tribunal accepts that the applicant saw the psychologist for counselling in 2018. The Tribunal also accepts on the basis of the report that the applicant has experienced suicidal ideation, insomnia, panic, withdrawn avoidant behaviour, lack of motivation, sense of hopelessness, flat affect, obsessive negative cognitions, nightmares and flashbacks. While the psychologist does not provide details of the reasons for her diagnosis, the Tribunal accepts her opinion that ‘these symptoms are consistent with Post Traumatic Stress Disorder’ as the applicant has testified of ongoing anxiety and the Tribunal has accepted his general credibility, referred to later in this decision. The Tribunal accepts that the symptoms are ‘persisting’ in 2020 and the reasons provided which are ‘his current experience of the world as a frightening and unsafe place as a result of living in a war torn country, having family remaining in physical danger and the uncertainty of not having his visa application resolved’. The Tribunal accepts that over the past two years the severity of his health has been ‘debilitating’ and he has been unable to work for several months and has limited ability to function socially and personally. [Psychologist A’s] opinion, on the basis of DSM-5 309.81 (F43.10) was that these symptoms would persist until he experienced safety and stability.

    [6] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Guideline for Persons giving Expert and Opinion Evidence, type="1">

40. The Tribunal acknowledges that psychological research on memory of trauma[8] indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events and that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[9]  The Tribunal has taken the applicant’s mental health issues as outlined in the psychologist’s report into account in assessing the evidence.

    [8] Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, 2012 26 Applied Cognitive Psychology 661, Brewin, C, The nature and significance of memory disturbance in posttraumatic stress disorder, (2011) 7 Annual Review of Clinical Psychology 203

    [9] Cameron, H.E., Refugee Status Determinations and the Limits of Memory, 2010, International Journal of Refugee Law 469

41. The findings of fact, taking into consideration the factors referred to above, are as follows.

42. The Tribunal accepts that the applicant is a Turi of the Shi’a faith from Kurram Agency. Most Turis live in Parachinar and Kurram Agency, Orakzai, Di Khan, Kohat and Hangu[10] and the applicant is from Parachinar and was able to talk about Turi history and experiences of being discriminated against as a Turi.

    [10] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

43. The Tribunal is satisfied on the basis of the overall internal and external consistency and coherency of the applicant’s account[11] that the applicant’s father was a Malik and had an important position in the local community, including sitting on the jirga and Anjuman-e-Hussainia. As accurately described by the applicant, a Malik is an official title bestowed on certain Pashtun tribal leaders in the Federally Administered Tribal Areas (FATA) of Pakistan.[12] While the applicant said that Maliks are appointed rather than being passed from father to son, the Tribunal notes that his brother has now been appointed Malik. This does accord with country information which suggests that the designation of Malik is generally inherited by the eldest son, but Maliks are appointed by federal government officials called Political Agents (PA).[13]  Sources indicate inheritance may influence a PA’s decision to grant Malik status.[14]  The position can entitle the holder to legal, administrative and political powers[15] as referred to by the applicant.  The applicant has provided details of his father’s role and responsibilities which accord with country sources. Officially, Maliks represent and advocate on behalf of their tribe[16], as described by him. However, Maliks also play an integral role in the administrative system of the FATA,[17] and are tasked with maintaining law and order within their tribes, as well as ensuring tribal loyalty to the state of Pakistan. For this role, a Malik receives an allowance. [18] The applicant did refer to work with the government, and his father’s role as ‘work’, implying he was paid for the role. The applicant also referred accurately to the role of jirgas in making rulings according to local justice.[19]  In regard to his membership of Anjuman-e-Hussainia, a letter dated [in] February 2016 from [an office bearer] in Parachinar confirmed that his father was a member [between specified years] and had an ‘effective’ role. All these factors indicate that his father had all these roles, as well as the fact that in the  general testimony about other matters, the applicant often referenced his father’s roles in a manner commensurate with actual experience.

    [11] AAT, Guidelines on the Assessment of Credibility, July 2015, available on the AAT Website, World Bank, Traditional Structures in Local Governance for Local Development: A Case Study of Pakhtun Residing in NWFP & FATA, Pakistan, p.14, 1 January 2005,

    [13] World Bank, Traditional Structures in Local Governance for Local Development: A Case Study of Pakhtun Residing in NWFP & FATA, Pakistan, p.14, 1 January 2005, International Crisis Group, Pakistan: Countering Militancy in FATA, 1 October 2009, AlJazeera, Pakistan’s tribal areas: ‘Neither faith nor union found’ Aljazeera, 10 September 2019

    [16] Vira & Cordesman, Centre for Strategic & International Studies, Pakistan: Violence & Stability,  5 May 2011, pp.43, 76

    [17] International Crisis Group, Pakistan: Countering Militancy in FATA, Crisis Group Asia Report N°178, 21 October 2009, p. 2

    [18] International Crisis Group, Pakistan: Countering Militancy in FATA, Crisis Group Asia Report N°178, 21 October 2009, p.3

    [19] Ali, S.S. 1999, The Rights of Ethnic Minorities in Pakistan: A Legal Analysis, International Journal on Minority and Group Rights, vol.6, p.185; and Khyber Agency (undated), Federally Administrated Tribal Area (FATA) website >

    The Tribunal is satisfied that the applicant’s father and his family angered local Taliban due to his father’s involvement in the Anjuman-e-Hussainia and the jirga, which has significant power.[20] The Tribunal accepts that his father played an important role in mobilising Turis to wage war against the Taliban in the 2002 conflict and that his father was close to the Turi Shi’a leader, [Leader A], who was killed by ISIS. Many sources refer to the antagonism between the Turi and Taliban in the area and the 2002 refusal of the Turis to shelter fleeing Afghan Taliban.[21]

    [20] Center for Research and Security Studies, FATA Tribes: Finally out of Colonial Clutches? Past, Present and Future, 01 June 2018, pp.9–10

    [21] BBC News, The Pakistan Tribe that is taking on the Taliban, 21 October 2010; Terrorism Monitor, Sectarianism in Pakistan’s Kurram Tribal Agency, 19 March 2009; DFAT, Thematic Report - Shia’s in Pakistan, 15 January 2016; European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020, >

    The Tribunal is satisfied that although the applicant’s family have not themselves suffered violence while living in Kurram, they have been threatened and have had to take numerous measures to protect themselves. The Tribunal accepts that they live in constant fear. The applicant provided detailed and persuasive descriptions of the impact of sectarian violence on the business and family life and the measures taken, including having weapons, generally staying at home, travelling in groups, and how his father was protected by the community as a Malik.

44. The Tribunal is satisfied that the applicant was a member of ISO while a student. According to a DFAT Report, ISO operates throughout Pakistan and addresses political and national issues and undertakes religious and social welfare activities in the broader Shi’a community. The Report suggests that 50 to 70 percent of Shi’a students belong to this group,[22] so it is reasonable that the applicant would have joined while at university. In fact the applicant said that 70 percent of students were ‘automatic’ members. He also expressed concern about Turi and Shi’a issues and displayed a commitment to seeking justice, views which are commensurate with a person who would have been involved in ISO.

    [22] DFAT, Thematic Report - Shia’s in Pakistan, 15 January 2016

45. The Tribunal is satisfied that the applicant was shot at while travelling between Islamabad and Parachinar at a bus stop in 2011. He has provided a copy of a police report and his evidence about the incident has been consistent. While there is significant document fraud in Pakistan, given that the Tribunal has found the applicant to be a credible witness, the Tribunal has no reason to find that the document is not authentic. In regard to the attack at the bus stop, country sources report on numerous road closures in the region from 2007 to 2011 and attacks in the area. [23]

    [23] Dressler, J and Jan, R, Institute for the Study of War and Critical Threats, The Haqqani network in Kurram: The Regional Implications of a Growing Insurgency, 2011; United States Department of State, Country Report on International Religious Freedom Pakistan 2011, >

    The Tribunal also accepts that while in Australia the applicant has been a member of [Community Organisation 1]. A corroborative letter has been provided by the President, [Leader B] confirming that he had been a member for over three years and had actively participated in events. The website of [Community Organisation 1] confirms that [Leader B] leads the organisation and that the organisation has provided support to migrants, and cultural interaction.[24] The Tribunal is satisfied that the applicant has taken part in protests in Canberra, Melbourne and Sydney. A photograph was provided showing the applicant demonstrating [in] 2016 against the killing of Shi’a scholar cleric Nimr al-Nimr. Given its findings on credibility generally, the Tribunal accepts that the applicant partook in these activities for reasons other than bolstering his refugee claim.

    [24] [Source deleted]

    Does the applicant have a well-founded fear of persecution?

46. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

47. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

    ·the real chance of persecution relates to all areas of a receiving country.

48. The applicant claims to fear persecution based on Turi ethnicity and Shi’a religion. He also claims to fear persecution based on actual and imputed political opinion based on being a Pashtun, Shi’a, Turi from Parachinar, Upper Kurram and being renowned for actively opposing Sunni militant groups and having a pro-US and pro-Iran opinion.

49. He also claims to fear persecution based on membership of a particular social group of Pashtun, Shi’a, Turi and son/family member of a prominent local Malik/Turi tribal leader from Parachinar. Alternatively, he claims to fear persecution as a member of a particular social group of ‘educated Pashtun, Shi’a Turi from Parachinar, Upper Kurram’, or as this kind of educated person with overseas qualifications gained in a western country.

100.   The applicant claims to fear a threat to loss of life or liberty, significant physical harassment, cruel inhuman treatment or punishment and degrading treatment and punishment from TeT, LeJ, SeS and ISIS. The applicant said that there is a difference between a common Shi’a and himself. The population in Parachinar is half a million, and half are Turis. The other people living in Turi areas know them. For him it would be difficult to live there after living overseas. He does not want to live in fear.

101.   It was claimed by the representative that despite a reduction in extremist attacks in Pakistan in recent years, the situation remains unstable, and terrorist attacks continue. It was submitted that a resurgence of attacks in the reasonably foreseeable future should be considered in the context of a rise of religious extremism including blasphemy charges, lack of government action, external threats, weak executive, judiciary and law enforcement institutions, and a failure to address the madrassa sector where extremism is fuelled. Additionally as reported in the Asian Times, Pakistan is suffering a surge in national deficit[25] and has been unable to curb global money laundering and financing of terrorism networks.[26] Furthermore it was submitted that ‘country information must now be contextualised with respect to the consequences of the 2020 COVID-19 pandemic which potentially has extremely adverse and far-reaching future health, social, economic and human rights dimensions for Pakistan including civil unrest, a rise in extremism, weakening military control and a severe economic downturn’. The International Crisis Group has said that jihadist forces like to ‘exploit disorder’.[27]

[25] Asia Times, FM Shakil Pakistan on brink of COVID- 19 financial collapse, July 2020

[26] Pakistan Institute for Peace Studies, Pakistan Security Report, 2019

[27] International Crisis Group, Special Briefing No.4:/ The Covid-19 pandemic and deadly conflict, 24 March 2020

102.   Section 5J(1)(a) requires that an applicant ‘fears being persecuted’ for one of the stated reasons.  This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention. The Tribunal is satisfied that the applicant has a genuine fear of returning given the history of terrorist attacks in his region and the fact that he was the victim of an attack in 2011.

103.   For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

104.   The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 percent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.[28]

[28] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), and the Second Reading Speech to the same Bill (referred to in FCS17 at [14]–[15]): Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014)

105.   The Tribunal is satisfied that there is a real chance of serious harm were the applicant to return to Parachinar or its surrounds in the reasonably foreseeable future. The reasons for this are set out below.

106.   Firstly, the Tribunal has accepted that the applicant is of Turi ethnicity and that the applicant would be identified as a Turi in his region. While Turis are not generally distinguishable from other Pashtuns by appearance, they are identifiable by tribal names, accents and residency in known Turi areas.[29]

[29] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

107.   Secondly, the applicant’s family is well-known in the area and his father has come to the adverse attention of the Taliban over the years. The Tribunal has accepted that his father was a Malik and a member of the jirga and Anjuman-e-Hussainia and was well-known to Taliban in his region. The Tribunal is satisfied that although his father was not the victim of violent attacks, he travelled very little, the family took protective measures, and his father was protected by local community members. The family business was close by, they carried weapons, stayed home most of the time, and never travelled alone. His father was close to the Turi Shi’a leader [Leader A], who was also a member of Anjuman-e-Hussainia, who was killed by ISIS. The Tribunal notes also that the applicant told the psychologist that he is very concerned for the safety of his family, indicating that although they have not been violently harmed, he fears that they are unsafe. The applicant’s brother is now the Malik which may well draw further attention to the family. As the Parachinar region has a relatively small population it is likely that the applicant’s family would be known to extremist groups in the area and that if the applicant returned from a western country he would be identified as a member of the family. In the most recent European Asylum Support Office (EASO) Report[30], sources are quoted as stating that in 2019 and 2020, tribal leaders have been targeted.[31]

[30] European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020, European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020,

108.   Thirdly, historically the Turis have been targeted by extremist groups in the Parachinar area and although there has been some reduction in violence, the situation remains unstable, with one recent attack in July 2020.[32] Militant groups such as the TTP, LeJ and SSP have been engaged in the conflict.[33] According to DFAT, the Turis number around 500,000 people and concentration of Turis in small geographical areas such as Parachinar renders Turi communities vulnerable to attack.[34] The Kurram district is surrounded on three sides by Afghan territory where elements linked to the Pakistani Taliban and the so-called Islamic State have created sanctuaries. These groups adhere to a hard-line Sunni faith and are fiercely anti-Shi’a. They see Shi’as as heretics and consider it is their sacred duty to eliminate them from the face of the earth.[35] The Taliban has attacked Turis not only for their faith, but in retribution for Turi battles against the Taliban in 2007/8 to prevent the Taliban from overrunning the Kurram.[36] As described by the applicant, the Taliban wished to access Afghanistan through the strategic Upper Kurram. Between April 2007 and early 2011, around 2000 to 3000 people were killed and over 3500 wounded[37] and much of Kurram’s health, education and agriculture infrastructure was severely damaged.[38]

[32] DW News, Pakistan: Protests erupt over Parachinar bomb attack, 24 July 2020

[33] International Crisis Group, Pakistan: Countering Militancy in FATA, Asia Report No 178, 21 October 2009

[34] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[35] BBC News, The little boy killed at the market, 26 January 2017; Internal Displacement Monitoring Centre, via website of Dr Farhat Taj, University of Oslo, Can Shi’a and Sunni overcome the sectarian divide? May 2011; Jamestown Foundation, Profiles of Pakistan’s Seven Tribal Agencies, 19 October 2007

[36] BBC News, The little boy killed at the market, 26 January 2017; Internal Displacement Monitoring Centre, via website o Dr Farhat Taj, University of Oslo, Can Shi’a and Sunni overcome the sectarian divide? May 2011; Jamestown Foundation, Profiles of Pakistan’s Seven Tribal Agencies, 19 October 2007

[37] Vira, V & Cordesman, AH 2011, Pakistan: Violence Vs Stability, Centre for Strategic & International Studies, 5 May

[38] Khan, MI, The Pakistani tribe that is taking on the Taliban’, BBC News, 7 October 2010

109.   DFAT advises that prior to 2017 there were significant attacks by extremist groups on Shi’as around Parachinar:

the Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a, especially in Parachinar, rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan. Between 2008 and 2014 Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith. Militants frequently stopped and killed Turis travelling on roads. A significant spike in profiling and targeting killings occurred between 2009 and 2014 along the Tall-Parachiner road which links Kurran Agency and Peshawar’. In 2017 there were three attacks on Turis in Parachinar killing 120 people.[39]

[39] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

110.   DFAT has advised that since 2017 there has been a significant reduction in attacks in Kurram Agency due to government efforts through Zarb-e-Azb, Radd ul Fasaad and other counter-terrorism activities. Notwithstanding this reduction, DFAT assesses Turis in Kurram Agency as facing a moderate risk of sectarian violence from militant groups because of their Shi’a faith and notes that there is significant discrimination against Turis in Kurram.[40]

[40] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

111.   DFAT reports that it was aware of three attacks targeting Turis in Parachinar during the first six months of 2017, on the grounds of Shi’a faith:

·     on 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar;

·     on 31 March 2017 a suicide bomber attacked an imambargah in Parachinar; and

·     on 24 June 2017 two devices detonated in a market in Parachinar.

112.   The European Asylum Support Office (EASO) also referred to these and other attacks in 2017 and 2018.[41] The attack in January 2017 killed at least 25 persons. The suicide bombing in March killed 23 persons and injured 100. On 25 April 2017 a roadside blast killed at least 14. In June 2017 twin blasts occurred in the market killing 67 and injuring more than 200. On 30 January 2018 an IED explosion killed six people and injured one.[42] 

[41] EASO, Country of Origin Information Report, Pakistan Security Situation, 15 October 2018

[42] EASO, Country of Origin Information Report, Pakistan Security Situation, 15 October 2018

113.   DFAT reports that attacks in 2017 killed more than 120 people. However, in the first quarter of 2018, the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children. This compared to community estimates that 200 Turis were killed and 1000 injured in 2017. Turis also reported significantly fewer road attacks in 2018, as military operations had forced militants into the mountains.[43] DFAT notes that this has restored confidence within the community for individuals (although not large groups) to travel on the Tall-Parachinar road, although only between dawn and dusk.[44] DFAT reports in 2019 that while military operations improved the security situation in Parachinar and Kurram Agency, they also restricted freedom of movement and limited the community’s access to essential services and trade opportunities. Military operations also displaced many Turis, and some of the many who have since returned to their homes have faced extensive damage to property and crops. DFAT reports that in February 2018, the Turi community estimated 40 percent of military fencing in Kurram was complete, decreasing border permeability. There have also been extra security measures and tighter Afghanistan-Pakistan border controls which restrict movement. DFAT reports that Turis advise that the military implemented a 20 to 30 square kilometre area red zone for Parachinar, and a second, smaller red zone inside the outer red zone, in which markets and schools are located. Security forces have issued cards to access the red zones, which can be obtained by residents on presentation of identity documents (CNICs or passports). While minorities feel more protected, according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of the Taliban and Al Qaeda. Turis face some risk of violence while travelling by road to Iran and Iraq on religious pilgrimage, although DFAT understands the government provides security assistance for such journeys.[45]

[43] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[44] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[45] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

114.   In 2019 only one attack was reported in Kurram Agency.[46] From 1 January 2020 to 31 July 2020, there were reports of three violent incidents in Kurram which caused 19 casualties (1 killed and 18 injured). In May 2020, a bomb blast occurred in an imambargah and in June 2020 at least five people were killed and over 20 injured. On 23 July 2020, a bomb explosion occurred at a local market in Parachinar, wounding 18 people.[47]

[46] FATA Research Centre, Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2019, 13 January 2020

[47] European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020,  Although these reports indicate that there has been a reduction in terrorist attacks in Pakistan generally and Parachinar specifically since 2017, the Tribunal is satisfied that there is still a real chance of such attacks, given a recent 2020 attack, ongoing attacks nearby, the history of such attacks referred to above, the precarious nature of the state protection in the area, and ongoing anti-Shi’a activity in Pakistan generally. As referred to above, a bomb exploded in a local Shi’ite market in Parachinar wounding 18.[48] The Taliban carried out three major attacks in Balochistan’s Pashtun areas bordering tribal areas in 2019.[49] There were also 125 terrorist attacks in nearby Khyber Pakhtunkhwa in 2019, claiming 145 lives. Ninety of those were security personnel and 46 civilians.[50] The area closest to Parachinar, Northern Wazirristan tribal district had the most attacks.[51]

[48] DW News, Pakistan: Protests erupt over Parachinar bomb attack, 24 July 2020

[49] TRTWorld,

[50] FATA Research Centre, Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2019, ,13 January 2020

[51] FATA Research Centre, Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2019, ,13 January 2020

116.   The FATA Research Centre Annual Security Report for the year 2020 concluded that:

after witnessing a nose dive in militancy incidents during the past few years, a remarkable surge in militancy and resultant casualties was observed in four out of the seven newly merged districts of KPTDs, According to the report, a total of 169 violent incidents (137 terrorism and 32 counter-terrorism) incidents were recorded during the year 2020 compared to 160 (106 terrorism and 54 counter-terrorism) incidents in the preceding year. This shows an increase of 29 percent in terrorism related incidents in the year 2020 as compared to the previous year.[52]

[52] FATA Research Centre, Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2020, 7 January 2021, 13 January 2020

117.   The Pakistan Institute for Peace Studies, which reviews all attacks, has claimed that, notwithstanding decline in terrorist attacks in 2019, extremist attacks continue, particularly as the NAP has failed to address extremism developed through the madrassa sector:

..These plummeting numbers do not suggest, in any way, that the threat of terrorism has been completely eliminated. Certainly most terrorist groups have been weakened but they are still present in physical and virtual spaces.[53]

[53] Pakistan Institute for Peace Studies, Pakistan Security Report, 2019,  The Pakistan Institute for Peace Studies acknowledges that there are considerable gains which have been made in recent years fighting terrorist groups but notes that extremist groups are still able to launch deadly attacks.[54]

[54] Pakistan Institute for Peace Studies, Pakistan Security Report, 2019,  The FATA Report also states that the Kurram Agency is highly vulnerable to terrorist attacks due to its proximity to the Nangarhar, one of the most volatile provinces of Afghanistan.[55] The area is also considered vulnerable due to its proximity to Afghanistan generally.[56]

[55] FATA Research Centre, Khyber Pakhtunkhwa Tribal Districts Annual Security Report, 2019, Afghanistan Analysts Network, Facts and Fiction on the Frontier: The Haqqanis and the Kurram peace deal, 14 April 2011

120.   The Tribunal is satisfied based on these country sources and the history of attacks on Turis, that despite recent improvements in the security situation there are still attacks on Shi’as in the broader region, and Turi Shi’as in the area remain significantly vulnerable to further violence, particularly given the attack on the Turi Bazaar in 2020. Although the total number of victims remain relatively low in comparison to the total population, the Tribunal is satisfied that the applicant remains particularly vulnerable given his particular profile.

121.   Fourthly, the roads around Parachinar have been the site of attacks over the years. The applicant was injured while travelling from Islamabad and his cousin was killed while travelling. According to reports, people in the region must travel to access health services.[57] It is likely that the applicant will need to travel for mental health care or employment reasons, and this will exacerbate the chance of attacks.

[57] United States Institute of Peace, Mainstreaming Pakistan’s Federally Administered Tribal Areas Reform Initiatives and Roadblocks, Special Report 421, March 2018

122.   Finally, and importantly, the Tribunal is satisfied that the applicant is a person who will participate in Shi’a and community affairs and speak out against injustice towards Shi’as or Turis. He has attended imambargahs and Shi’a festivities such as Ashura regularly. He has also been a member of community organisations and attended protests. Clearly, his father’s involvement in community and political affairs has impacted on him. He has spoken of advocating for Shia’s as ‘being in his DNA’. The Tribunal is satisfied that his ongoing community and political commitment will heighten the chance of him coming to the adverse attention of extremist groups.

123.   The Tribunal is satisfied, taking all these matters into account cumulatively, that the applicant faces a real chance, in the sense of a non-remote and substantial chance[58] of serious harm for reasons of his political opinion imputed as a result of his family connections and because of his own views, as well as his Shi’a faith and Turi ethnicity.

[58] Chan v MIEA (1989) 169 CLR 379

Does the chance of persecution relate to all areas of the country?

124.   Section 5(1)(c) provides that a person only has a well-founded fear of persecution if the chance of persecution relates to all areas of the country.

125.   The Tribunal has found that there is a real chance of serious harm in the applicant’s home region Parachinar and surrounds, given the applicant’s circumstances.

126.   The Tribunal is also satisfied after a careful consideration of the country sources and the applicant’s particular circumstances, that the chance of persecution relates to all areas of the country. The reasons for this are set out below.

127.   Pakistan is a large country with a population of 223 million[59] which does suggest that a Turi Shi’ite from Parachinar could move to a new area and not come to the attention of extremists. The 2019 DFAT Report states that internal relocation is widespread and common, and 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[60]. DFAT reports that there are some 30 million Pashtuns in Pakistan, with large populations in Karachi, Islamabad, Lahore and other major cities. There are also large Shi’a populations in major cities. There are global Turi Shi’a networks and donation systems which can assist Turis to relocate to other cities in Pakistan.[61] Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of language barriers, notably Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi and to live in enclaves with other Turis, mitigating societal discrimination.[62]

[59] Worldometer website, Pakistan 2021

[60] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[61] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[62] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

128.   Furthermore, as referred to earlier, security forces launched security operations in 2014 and since then there has been a significant reduction in the number of violent and terrorist attacks in Pakistan.[63] There was a 29 percent decline in 2018 marking a nine-year downward trend,[64] and relatively low numbers of attacks since then.[65] In 2019 there were about 357 people killed,  and 729 injured in terrorist attacks across the country.[66] Security forces, rather than the Shi’ite community, have been the key target of the largest number of attacks recently. In other parts of the country than Kurram Agency, DFAT assesses Turis as facing a low risk of sectarian violence.[67] In places such as Rawalpindi, Islamabad, Multan, Lahore and other parts of Punjab, there have been few attacks on Shi’as in recent years. Importantly, the applicant’s family background would not be known to Sunni extremist groups in areas other than the Upper Kurram and he therefore would not initially have a profile outside his region.

[63] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[64] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[65] FATA Research Centre, Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2020, 7 January 2021, 13 January 2020

[66] European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020, Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

129.   However, notwithstanding these factors, the Tribunal is satisfied that the real chance of serious harm relates to all areas of the country when considering the applicant’s particular circumstances. The Tribunal is satisfied that the applicant could be identified across the country as a Turi of Shi’a faith from Parachinar with overseas education, due to his accent, way of speaking and identification papers. DFAT states that Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes. Turis claim a Turi child died at a North Waziristan checkpoint because security officials refused the family’s request to cross to visit a hospital.[68] This commentary does indicate that Turis are easily identified as such and treated differentially in other areas of Pakistan. The Tribunal accepts that employers, landlords and other members of the community to which the applicant moved would be able to identify him as a Turi and Shi’a from Parachinar.

[68] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

130.   Importantly, although the applicant’s family background would not be initially known to the community to which he relocated, the Tribunal is satisfied that he would very shortly develop a profile as a Turi Shi’a from a Malik family with anti-extremist views. He has submitted and the Tribunal accepts that there are few Turis who are well-educated and come from a Malik family, and that this will distinguish him further from other Turis. The Tribunal also accepts that Sunnis who migrate to Parachinar originate in different parts of Pakistan and ‘know his family very well’, which may mean that he could be identified by some Sunni networks outside of the Parachinar area. Furthermore, the applicant is a person whose family has been active in Shi’a political, religious and community affairs and it is clear that this commitment has impacted on him. He spoke of his brother’s commitment to the region due to his father’s involvement, and how his father had said that danger was the price he had to pay for dedication to Shi’a community affairs. The applicant has regularly attended Shi’a religious activities in both Pakistan and Australia. He has referred to injustices he experienced as a Shi’ite in both Parachinar and Islamabad, where Sunnis made insulting comments to him. He has been involved in Shi’ite activities through ISO in Pakistan, where he helped organise protests and notify students of actions, and the [Community Organisation 1]in Australia. He has said that if he returns to Pakistan, he will become involved in Shi’a community activities and speak out against injustice towards Shi’as or Turis as ‘this is in his DNA’ and he has no choice but to speak out against injustice. He has attended protests in Canberra, Melbourne and Sydney for Muharram, demonstrating that he has maintained his commitment to the Shi’a community even while living in Australia. The most recent protest he attended was in 2019 in [a location] in regard to Shi’a missing persons in Pakistan. The Tribunal is satisfied that if the applicant returned to Pakistan, notwithstanding dangers to him, the applicant will attend and participate in religious ceremonies, Shi’a community activities and public demonstrations and will express his anti-extremist opinions.

131.    DFAT has assessed that most Shi’a face a low risk of sectarian violence, with the exception of high-profile Shi’a who face a moderate risk.[69] The Tribunal is satisfied that the applicant would develop a profile as an educated Shi’a Turi from a Malik family, with anti-extremist opinions, and that in the context of historical animosity between the Turis and the Taliban, instability in the country, the rise of religious intolerance, and a recent attack in Parachinar, this would heighten the risk to him. The fact that Turis have a longstanding hostility with the Taliban means that Turis are more likely to be noticed by Taliban than other ethnic groups. Sources are in agreement that despite the significant reduction in armed attacks across the country since 2014, armed groups remain a threat across the country[70]. The Pakistan Institute of Peace Studies states that terrorist groups have been weakened but are still present in physical and virtual spaces.[71] In discussions about relocation, the applicant’s representative submitted that the ‘core, foundational factors for a resurgence in sectarianism remain in place, including the rise of religious extremism, the ongoing intolerance of religious and ethnic minorities and an increase in smaller-scale targeted killing’. There is no doubt that these ‘foundational factors’ could lead to increased acts of violence against Shi’ites although it is difficult to predict whether this would be short or medium term. DFAT reports that the underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018 and continue to do so in 2019.[72]  DFAT assesses cycles of violence are likely to continue until these conditions change. 

[69] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[70] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

[71] Pakistan Institute for Peace Studies, Pakistan Security Report, 2019

[72] Department of Foreign Affairs and Trade, DFAT Country Information Report – Pakistan, 20 February 2019

132.   Growing intolerant attitudes amongst the broader Sunni community was demonstrated in four anti-Shi’a protests which took place in Karachi in 2020[73]. As pointed out by the representative for the applicant, there has also been a rise in blasphemy accusations and continued rise of extremism in the madrassa sector.[74] The COVID-19 pandemic may result in more unrest and extremism, as submitted by the applicant’s representative, although this is speculative at the moment. An article in the Diplomat in September 2020 stated that many have observed that outrage against Shi’a Muslims is unprecedented and alarming. The article reports ‘this is the first time that three prominent groups within Sunni Islam — Deobandi, Sufi Barelvis and Salafists — have concurrently held public rallies in a single week, openly calling the Shi’a sect “heretical,” its followers “infidels” and demanding violent action.’[75] The article referred to the following anti-Shi’a conduct in the country in late 2020: ‘since August 30, at least five Shias have been killed in different parts of Pakistan on a sectarian basis, more than 30 blasphemy cases have been registered against Shi’as, at least one religious congregation was attacked and several videos appeared in which Shi’as were forced to accept the Sunni historical account on the caliphs. On social media, anti-Sh’ia hashtags periodically trended; two in particular had significant reach.[76]

[73] The Diplomat, The Changing Landscape of anti-Shi’a politics in Pakistan, 28 September 2020

[74] DW News, Pakistan: Protests erupt over Parachinar bomb attack, 24 July 2020

[75] The Diplomat, The Changing Landscape of anti-Shi’a politics in Pakistan, 28 September 2020

[76] The Diplomat, The Changing Landscape of anti-Shi’a politics in Pakistan, 28 September 2020

133.   The most recent European Asylum Support Office (EASO) Report, in October 2020[77], in its overview of the security situation in Pakistan, refers to comments of a research fellow at the S. Rajaratnam School of International Studies (RSIS), that a decline in militant violence is noticeable but that the threat of militancy has not disappeared, with the structural factors of violence, ‘religious intolerance, abysmal socio-economic conditions and ethno-nationalist grievances’ remaining unaddressed and exacerbated further in recent years.[78] EASO noted that in its 2020 annual report (covering 2019), the United States Commission on International Religious Freedom (USCIRF) reported that religious freedom conditions deteriorated in recent years, despite some positive developments in 2019.[79] The Asia Program Deputy Director and Senior Associate for South Asia at the Woodrow Wilson International Center for Scholars is quoted as stating that in 2020 religious minorities continue to be violently targeted, although not at the level of previous years. He states that Shi’as continue to face systemic discrimination.[80]

[77] European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020, Ibid

[79] Ibid

[80] European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020,  An article in the Guardian in October 2020 also referred to the surge in blasphemy cases and attacks on Shi’as: ‘as well as the 50 who have been charged in the blasphemy crackdown, five have been killed since September and many more Shi’a families and well-known figures have gone into hiding. Last week, in Punjab, police beat up and arrested 22 Shi’a Muslims, including seven women, who were taking part in a ceremony to mark a Shi’a martyr.’[81] Minority Rights International has recently called on the Pakistani government to take action: ‘MRG…are gravely concerned that the Pakistani authorities’ inaction against proscribed organisations and other actions inciting hatred and violence against Shi’a communities will lead to more violence and hate speech against an already heavily persecuted minority.’[82]

[81] The Guardian, Pakistani Shias live in terror as sectarian violence increases, 21 October 2020

[82] Minority Rights International, Shi’a become latest target of Pakistan’s extremist Islamic factions; murders, hate speech and numerous blasphemy allegation sow seeds of long-term religious tension, 20 October 2020

135.   The Tribunal has taken into consideration the fact that the applicant said that both he and his brother felt unsafe in Islamabad and the family continues to worry about the brother in Islamabad. Further, the applicant was injured in the past while travelling from Islamabad, and it is reasonable to assume that he will want to travel for health care, work or to visit family members. He has been receiving mental health care regularly in Australia and the psychologist indicated that in recent years his symptoms have been debilitating, such that it is reasonable to assume that he will need to seek ongoing mental health care in Pakistan. Road travel around Parachinar has been very dangerous over the years, although more secure in recent times. The Tribunal acknowledges that he will need to travel including seeing his family and that this would make him more vulnerable to attacks.

136.    The Tribunal must look to the reasonably foreseeable future[83] and finds on the basis of the country sources that the situation is fluid and uncertain for a Turi Shi’a with a political profile of some kind. In the past militant groups have targeted crowded Shi’a areas and mosques, pilgrims and travellers and professionals.[84] The UNHCR considers that members of the Shi’ite community may, depending on the individual circumstances of the case, be in need of international refugee protection.[85] Although these Guidelines were written in 2017 and there has been a reduction in violence since then, given the historical antagonism to Turis specifically, the applicant’s very specific circumstances and the rise of intolerance in Pakistan, the Tribunal is satisfied that there is a real chance of harm in all areas of Pakistan in the reasonably foreseeable future. Although the number of victims of violence may appear to be low in proportion to the large population of Pakistan, and the population of Shi’as, the Tribunal is satisfied that there is a real chance of serious harm including threats, ill-treatment and violence, because of his particular profile  This real chance of harm may be less than 50 percent[86], but the Tribunal is satisfied that it is substantial and not remote given all the factors set out above.

[83] SZTOO v MIBP [2015] FCCA 1631

[84] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017

[85] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017

[86] Chan v MIEA (1989) 169 CLR 379

137.   Given this information, the Tribunal is satisfied that persecution relates to all areas of the country.

Are effective protection measures available to the applicant?

138.   The Tribunal is not satisfied that the applicant could access effective protection measures. DFAT reports[87] that Pakistan’s 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 and political will.  Despite measures introduced to curb violence across the country under the NAP – strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare.  This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families.  EASO also summarises various reports which indicate long delays in courts, judicial corruption and inefficiencies.[88]

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

[88] European Asylum Support Office, – Pakistan Security Situation - Country of Origin Information Report, October 2020,  The UNHCR[89] report states that the government has been criticized for failing to protect Shi’ite Muslims from attacks and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan.  Despite efforts by regional authorities to provide additional security measures for Shi’ites, in some situations the security situation for Shi’ites has reportedly not improved.  Even where the police have been present, they have reportedly been unable to stop attacks and analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites.  Shi’ite individuals have held large protests to demand better protection and security from the authorities.[90]

[89] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious minorities from Pakistan, January 2017

[90] Arab News, Pakistan protesters end blockade over deaths of miners, 24 January 2021

140.   The Tribunal is not satisfied therefore that effective protection measures are available for persons with the particular ethnic, religious and political profile of the applicant.

Findings on refugee criteria

141.   The Tribunal is satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his political opinion, Turi ethnicity and/or Shi’a faith.

CONCLUDING PARAGRAPHS

142. 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

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

Jane Marquard
Member

ATTACHMENT A  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

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

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

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

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

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

ATTACHMENT B – DOCUMENTS PROVIDED BY THE APPLICANT

The applicant provided the following documents to the Department:

·copies of court documents issued by the Supreme Court in Pakistan and the Peshawar High Court, in 1991, in relation to a land dispute in [a named] Village, Kurram Agency.

·‘First Information Report’ from [a named] Police Station dated [in] August 2011, stating that the applicant, aged [age], reported to the police station that ‘I was travelling from my village to Islamabad via Peshawr. When I arrived at [Town 2], I got off the lorry and started waiting for the lorry to Islamabad. I was ambushed by some suspicious, masked men. The masked perpetrators attempted to abduct me, however the attempt failed due to the presence of a crowd. The perpetrators also shot at me with a pistol. In the meantime the police mobile arrived. The perpetrators managed to flee the scene when the police arrived. I and my family had been receiving threats before this incident from Tehrik-e-Taliban’.

·A letter by [Leader B], President of [Community Organisation 1], dated [in] February 2016. The author states that the applicant has been an active member of the society for over three years and had participated in events since arriving in Canberra. 

·A letter from the Office of the Commissioner, [Division 1], dated [in] July 2010, stating that ‘sanction is hereby accorded to the grant of fresh Lungi with allowance of Rs25/- PA in favour of (his father)’.

·A letter from [an office bearer], Anjuman-e-Hussainia, [branch], dated [in] February 2016. The author certifies that the applicant’s father served Anjuman-e-Hussainia as an active member [between specified years].

·Copy and translation of a police document dated [in] August 2011, in relation to a statement made by the applicant to officers at [a named] Police Station, Peshawar. The document outlines the incident in which the applicant was attacked at [Town 2], and states that the case has been forwarded for investigation. 

·A photograph of the applicant allegedly attending a protest [at a location] against the killings of a Shi’a scholar dated [in] 2016.

The applicant provided the following documents to the Tribunal:

·     A letter from Anjuman-e-Hussainia, [branch], dated [in] October 2018. The letter states that the applicant’s father, [named], was a Malik and an active member of the Anjuman-e-Hussainia [branch], involved in many cases of Shi’a property disputes against the local Sunni community. He said that [the applicant’s father] participated in all activities including Jirga local issues.

·     A letter from [a named official from the] Supreme Court of Pakistan, dated [in] October 2018, certifying that he knows the applicant, who is a Shi’a and lives in Parachinar. The letter states that a close friend of the applicant’s father, [Leader A], was killed by the Taliban in 2014. The letter also states that the applicant’s life ‘is not secure in Pakistan’ and that he had managed to escape attacks on ‘several occasions’, including the attempted kidnapping in Peshawar in August 2011.

·     A report of [Psychologist A] dated 10 November 2020. [Psychologist A] reported that the applicant commenced counselling for the treatment of depression and anxiety in September 2018, due to experiencing suicidal ideation, insomnia, panic, withdrawn avoidant behaviour, lack of motivation, sense of hopelessness, flat affect, obsessive negative cognitions, nightmares and flashbacks. She said that these symptoms are consistent with Post Traumatic Stress Disorder (PTSD) and are persisting due to his ‘current experience of the world as a frightening and unsafe place as a result of having lived in a war-torn country, having family remaining in physical danger and the uncertainty of not having his visa application resolved’. She said that symptoms (DSM-5 309.81 (F43.10)) remain until a person feels safe and stable. She said that he reported his decline in mental health after his visa application in 2016 was rejected. His mental health had become debilitating, as he was unable to work in 2018 and 2019 and his ability to function socially and personally was limited. The stress he experienced has also affected his physical health. She reported that she had provided him with psychotherapy monthly and sometimes weekly since September 2018. He had made progress, however he continued to struggle with implementing effective coping strategies to manage his symptoms of depression and anxiety due to the ‘severity of his invasive thoughts and memories’.