1621995 (Refugee)
[2018] AATA 5654
•14 December 2018
1621995 (Refugee) [2018] AATA 5654 (14 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1621995
COUNTRY OF REFERENCE: Pakistan
MEMBER:Paul Windsor
DATE:14 December 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a).
Statement made on 14 December 2018 at 9:57am
CATCHWORDS
REFUGEE – protection visa – Pakistan – ethnic group – Bangash – religion – Shia Muslim – imputed political opinion – Taliban – Sunni extremist groups – applicant faces real chance of persecution – relocation in home country not reasonable – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 45, 424, 438, 499
Migration Regulations 1994 (Cth) Schedule 2, r 2.08FCASES
AAY15 v MIBP [2017] FCCA 476
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 25 November 2012 and the delegate refused to grant the visa on 14 December 2016.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto/Pushtu and English languages.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his Protection visa application Mr [A] claims to be a citizen of Pakistan who was born in [Village 1] in Khyber Pakhtunkhwa province Pakistan on [date]. He states he belongs to the Bangash ethnic group, is a Shia Muslim and that he speaks and reads Pashtu and speaks Urdu. He indicates he has never married or been in a de facto relationship. Mr [A] indicated he departed Pakistan legally on in 2011 via [City 2] (on a Pakistani passport in his name) and arrived in Australia in 2012 as an unauthorised boat arrival. He states that his passport was destroyed when his boat sank.[1]
[1] See [numbers] of the Departmental file.
Summary of claims from the Protection visa application
Mr [A]’s claims for protection were included in a statutory declaration of 24 November 2012 included with his Protection visa application. His claims are summarised as follows:[2]
[2] See folios [numbers] of the Departmental file.
·He is an ethnic Bangash Shia Muslim.
·He fled Pakistan because he fears persecution from the Taliban due to his Shia religion and Bangash ethnicity.
·He is from [Village 1] in Parachinar, Kurram Agency Pakistan. His family have [assets] that his father [works] . He assisted his father.
·In 2007 fighting started in Parachinar between the Taliban and their opponents. It was also a conflict between Sunni and Shia. There were many incidents of kidnapping, suicide bombs and other bombs. The Taliban targeted Shia people.
·The Bangash tribe has also been the target of Taliban attacks because the Taliban want to control their land, which is of value to them because it borders Afghanistan.
·From 2010 until he left Pakistan at the end of 2011 he received 15-20 telephone calls from unknown people, threatening to kill him. He reported these calls to the police who tried to trace where they were coming from but they had no success.
·Sometimes he would travel to Peshawar to purchase supplies. It is very difficult to undertake this trip as the road is difficult and there have been many incidents of buses being attacked by the Taliban and burnt and passengers killed. They targeted buses carrying Shias. Some of his friends were killed in these attacks.
·Shia processions are sometimes attacked in Pakistan. He always lived in fear of being harmed during this time.
·His father advised him to leave Pakistan in order to protect himself.
·He could not live anywhere else in Pakistan as there is no other safe place there and he will continue to be at risk because of his religion and his tribe. He spent a short time in [City 1] but there were bomb blasts there. He also went to [City 2] but it was even worse there with many blasts and killings.
·The authorities are unable to protect him and may even deny him protection because he is Bangash and a Shia.
Mr [A] provided a further statement dated [in] April 2014 in response to the delegate’s request that he provide further information in relation to his national ID card because she noted that the national ID card that he submitted to the Department had been ‘examined to be a counterfeit’. Mr [A] indicated that his family had obtained the card in question after he was ‘requested’ by his case officer at an interview [in] April 2013. Mr [A] indicated that his cousin had arranged for the ID card and he believed it was genuine as it had his ‘NIC number’ so he submitted it to the Department in 2013. He indicated that he applied for a National ID card in around 2011 when he turned [a certain age] age, but never received it, and he believed this was due to the bad security situation in Parachinar at the time, when the road was closed. He indicated that he travelled to [City 1] to get his national ID card but was just given a piece of paper showing his ID number and told he could use that to apply for his passport. While he lost a scanned copy of this paper when his boat sank en route to Australia, his family were able to email him a scanned copy.[3]
[3] See folio [number] of the Departmental file.
The representative wrote to the Department [in] February 2015 referring to a request in April 2014 that Mr [A] obtain and provide a National Identity Card for Overseas Pakistanis (NICOP) indicating that it was proving difficult to obtain this document from the Pakistani authorities in Australia including because Mr [A] was unable to provide an attested copy of his Pakistani passport as requested by the Pakistani authorities.[4]
[4] See folio [number] of the Departmental file.
Mr [A] provided a further statement dated [in] October 2015 referring to his statement of [April] 2014 and reiterating that he did not knowingly provide a bogus document to the Department but made a genuine attempt to comply with a request by a Departmental officer that he provide his National ID card and was not aware that his cousin had got the card through non-official means. He noted that he has provided a number of other documents that provide evidence of his identity.[5]
[5] See folio [number] of the Departmental file.
The representative provided a pre-hearing submission dated 5 December 2018. Relevant additional matters raised in this submission are summarised as follows:[6]
[6] See folios 17-32 of the Tribunal file.
· There is a real chance Mr [A] would face serious harm at the hands of the Taliban and Sunni extremist groups in Pakistan on account of, individually and cumulatively:
· his Pashtun ethnicity and membership of the Bangash tribe; and/or
· his Shia religion; and/or
· his imputed political opinion as against the Taliban and other Sunni extremist groups; and/or
· his membership of the particular social group of ‘returnees from Western countries’.
· He also faces a real risk of suffering significant harm in the form of:
· Arbitrary deprivation of his life;
· Torture; and
· Cruel, inhuman and degrading treatment or punishment.
· The representative submits that unless an adverse finding is made in relation to Mr [A]’s credibility, including in relation to him having been threatened on the phone, the logical conclusion is that he was a person of interest to the Taliban/Sunni extremist groups and that he continues to be a person of interest to such groups. It is submitted that Mr [A] is a credible witness.
· The representative comments on relevant country information including the use of DFAT country assessments; the durability of the overall improved security situation in Pakistan; advice in the Australian government’s travel advisory on Pakistan (last updated on 1 November 2018); and the treatment of Shias in Pakistan including Bangash Shias from Kurram Agency.
· It is submitted that the harm the applicant fears will be inflicted by state authorities in all parts of Pakistan and therefore neither state protection nor relocation can be considered.
Findings and reasons
The issues in this review are whether there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s identity
On the basis of the identity documents provided to the Department by the applicant,[7] and noting the delegate’s findings in relation to this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be. The Tribunal accepts that Pakistan is the applicant’s country of nationality for Convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.
Credibility
[7] See folios [numbers], and [numbers] of the Departmental file.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
Mr [A] claims to fear serious harm from the Taliban and other Sunni extremist groups in Pakistan due to, cumulatively, his Bangash Pashtun ethnicity/race, Shia religion, imputed anti-Taliban/Sunni extremist political opinion and his status as someone who has returned to Pakistan from a western country.
Purported s.348 Certificate
The Tribunal discussed with the applicant that the Departmental file contained a notification certifying that s.438(1)(a) of the Act applies to the information at folios [numbers] and [numbers] of the file and that disclosure of the information contained in those folios would be contrary to the public interest because they contain information relating to an internal working document and business affairs.
The Tribunal put to Mr [A] that it had formed the view that the certificate is invalid because, in the Tribunal’s view, disclosure of the information in the relevant documents would not be contrary to the public interest simply on the basis that they are internal working documents relating to ‘business affairs’. The Tribunal also noted that the delegate had already commented on the documents in her decision record. The applicant indicated he understood why the Tribunal considered the certificate to be invalid.
The Tribunal advised Mr [A] regarding the nature of the relevant documents (that they relate to the findings of the Department’s Document Examination Unit regarding personal/identity documents he had provided to the Department) and that, as he had been advised by the Department, the Department had found that the National Identity Card he submitted was a counterfeit document. The Tribunal advised Mr [A] that it accepted the finding of the delegate that Mr [A] believed the document (which was obtained by his cousin in Pakistan) was genuine when he submitted it, and the delegate’s ultimate finding, based on the other identity documents and oral evidence Mr [A] provided to the Department, that he is a Bangash Shia from Kurram Agency and is a citizen of Pakistan. The Tribunal advised Mr [A] that it has drawn no adverse inferences from any of the documents in question.
Ethnicity/race and religion
Considering the identity documents provided by the applicant, his evidence at the hearing and noting the delegate’s finding in relation to these matters, the Tribunal accepts that the applicant is an ethnic Pashtun of the Bangash tribe and that he follows the Shia Muslim faith. The Tribunal accepts that he is from [Village 1] in Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan. The Tribunal finds that [Village 1] is located [a number of] km from Parachinar, the capital city and largest city of Kurram Agency.
Background to the conflict in the Kurram Agency of the FATA
Relevant country information indicates that the security situation in Parachinar and Kurram Agency deteriorated from 2007, that the road to Peshawar was often closed and that travel along the road often had to be by convoy. The independent information before the Tribunal indicates that the most sustained conflict in Kurram Agency since 2007 has been the violence between the Shia Turi tribe, their Shia allies and some Shia Bangash clans on the one hand and Sunni extremist groups from both Afghanistan and Pakistan on the other hand. Insurgent groups have sought to use a corridor between Pakistan and Afghanistan that passes through the Kurram Agency and the majority Shia population in this area, particularly centred on Parachinar and surrounding districts, denied them this route. This subsequently resulted in violent clashes beginning in April 2007 and led to the road between Peshawar and Parachinar being closed between 2007 and 2011, causing acute shortages of essential items in Kurram Agency, according to observers like the Human Rights Commission of Pakistan.[8] The violence in the area from 2007 due to the fighting and targeted attacks against Shias resulted in hundreds of deaths and large-scale displacements from Kurram Agency. The Tribunal notes the independent country information indicates that the TTP effectively cut Parachinar off from the rest of Pakistan from 2008 to 2011[9], with the closing of the main highway linking Parachinar to the rest of the country, thereby seriously affecting the livelihoods of those living in Kurram Agency.
[8] ‘Pakistan: Driven out of Kurrum Agency by violence’, IRIN News, 17 May 2011,
[9] Siddique, A 2014, The Pashtun Question: The Unresolved Key to the Future of Pakistan and Afghanistan, Hurst & Company, London, p,102
Country information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban and/or the TTP, and that Shia Muslims from Kurram Agency in particular, including those from the Turi tribe, are widely recognised as having opposed the Taliban. Reports indicate that in the first quarter of 2012 Shias continued to be targeted in Kurram Agency, with 30 security incidents in Kurram including 15 bomb attacks.[10] In July 2013 multiple bomb blasts in Parachinar were reported to have killed around 50 people and injured over 100.[11]
Claims to have received threatening calls
[10] FATA Research Centre 2012, Security Report First Quarter 2012, p.12.
[11] ‘Multiple blasts in Parachinar kill 50, injure 122’, The Express Tribune, 26 July 2013, >
In the statutory declaration of 24 November 2014 included with his Protection visa application, Mr [A] stated that ‘For the last few years’ he had received telephone calls from unknown people threatening to kill him. He wrote ‘This has happened around 15 or 20 times since 2010 and continued until the time I left at the end of 2011’. He wrote that he thinks the person making these calls wanted to kill him because of his ethnicity and religion. Mr [A] also wrote that he would sometimes travel to Peshawar to purchase supplies for the house, commenting that in the last five years he had been there approximately fifteen times. In his statutory declaration he indicated that his father works [in a certain industry] and that he has assisted his father with this. He did not indicate that he had undertaken any other work. In an attachment to his Protection visa application he indicated under ‘Past Employment’ that from 2008 until 2011 he worked as a [Occupation 1] for his father on [a location]. He also indicated that he was studying for [a specific subject] at [School] from [certain years] and provided a document indicating that his Examination results were issued on [date].
At the hearing, however, when asked whether he worked in Pakistan, Mr [A] said he had a shop. He added that ‘we’ had a [specific] shop. When queried who ‘we’ were, Mr [A] said it was his shop but he was working for his father. When asked what the name of the shop was he said it did not have a name as it was only a [specific] shop. He said it was not that common for a shop to have a name. The Tribunal queried Mr [A] when he worked at the shop. He said he could not remember but it was morning until night. The Tribunal asked him how long he worked there for. He replied that they had it for a long time and he would go there after school. When pressed he said he worked there for a few months. The Tribunal put to him that his evidence on this matter was inconsistent as firstly he said he worked there from morning to night, but then said he went there after school. He replied that he would go there in the morning when it was school holidays. The Tribunal also queried Mr [A] that he said he only worked there for a few months and asked him if he was doing this before he left Pakistan. He replied ‘yes’, commenting that he was studying otherwise.
The Tribunal also queried Mr [A] regarding his claim in his statutory declaration of 24 November 2012 to have been receiving threat calls ‘For the last few years’. The Tribunal asked Mr [A] when he started receiving these calls and what the callers said to him. He replied that if he comes to Peshawar to get goods he would not be able to return. He said he could not remember when he first got a call but when pressed indicated it might have been in the start or middle of 2011. When asked how many such calls he received he said he did not know as he can’t remember now. When asked if it was 1, 5, 10 or more than 10 he said he did not remember. He said he thought they had reported the matter to police but the police did nothing about it. As discussed with the applicant, there are significant inconsistencies between his oral evidence and his written statement (where he said he had been receiving the calls for the last few years, had received 15-20 calls since 2010, and that the police tried to trace the calls from the telephone exchange but could not do so. Based on these significant inconsistencies in his accounts the Tribunal doubts that Mr [A] received threat calls as claimed.
The Tribunal also has concerns about Mr [A]’s evidence in relation to having worked in an [shop]. This was not raised in his Protection visa application where the only employment he declared was that he helped his father on [location]. He also wrote in his initial statement that his father works [and] the last few years he had assisted him. In relation to travel to Peshawar he indicated that he sometimes did that ‘to purchase supplies for the house’. There is nothing in his application and supporting documents provided at the time of the application to indicate that Mr [A] worked in an [shop] or travelled to Peshawar to purchase goods for the shop. At the hearing, however, he not only indicated that he worked in a [ shop] but also said it was his shop. The Tribunal also found the applicant’s responses in relation to when he worked there were vague and unconvincing.
The applicant commented that he had mentioned that he worked in a shop in his interviews with the Department. The Tribunal put to the applicant for comment or response in accordance with the requirements of s.424AA of the Act, information from his Protection visa interview held with the delegate [in] April 2013, which indicates that while he said at that interview that he worked at a [shop] for a few months, the delegate had queried him that at his Entry Interview with the Department when he was asked if he worked in Pakistan he said no but indicated that his intention was to start a shop and that he collected money and was in the process of buying stock but had to leave Pakistan, and that he made no mention of having received telephone threats. The applicant did not request additional time to comment on or respond to the information but responded that he did have a shop but it was in his father’s name as he was young. He said he worked at the shop and visited it after school when he got the time. When queried why he did not mention this in his Protection visa application he said when he arrived in Australia he didn’t understand what was happening and the interview was not clear, but when he met his lawyer he told them about the shop. The Tribunal put to the applicant that his application was completed with the assistance of the organisation that is currently representing him. He reiterated that he told his lawyer but commented that his lawyer might not have mentioned it. While the Tribunal has significant doubts regarding this claim, noting that the applicant indicated that his father owns a number of shops in Parachinar, the Tribunal accepts that it may be possible that the applicant was planning to open a[specific] shops in the months before he departed Pakistan at the end of 2011.
The Tribunal queried the applicant regarding how many times he travelled to Peshawar, noting that the country information indicates that the road from Parachinar to Peshawar was closed for much of the period in question. He indicated that travel was only by escorted convoy. He said he travelled by convoy ‘a few times’ including when he left Kurram Agency to come to Australia in late 2011 and when he travelled to [City 1] earlier in 2011 to get his passport. When queried about how many other times he travelled to or through Peshawar he said he did not know but remembered doing it a few times. When pressed he said he thought it might have been four to five times from 2008 until 2011, twice to get goods and then when he got his passport and again when he left Pakistan. When queried that that is four times, the applicant replied that he does not remember the other times. Noting that the applicant indicated in his statement that in the last five years he had travelled to Peshawar approximately fifteen times to purchase supplies for the house the Tribunal put to the applicant that it has significant doubts that he ever received threat calls due to his travelling to Peshawar. The applicant replied that he had not been asked previously about the details of what goods he bought and that he used the term ‘goods’ as a general statement. The Tribunal commented that in his statement he referred to going to Peshawar to purchase ‘supplies for the house’. The applicant responded that he does not remember how many times he travelled, commenting that there was no-one else in his household who could do this apart from his father and himself at the time. The Tribunal asked the applicant how he thought the people who were calling him got his mobile phone number, and why they would have rung him 15-20 times. He replied that he was studying and a lot of people knew him. While the Tribunal accepts that the applicant would not be able to recall specific details of how often he travelled and precisely when, the Tribunal considers that he should be able to recall broadly whether he travelled 4-5 times or 15 times.
Based on a cumulative consideration of the applicant’s evidence in relation to his claimed work, travel to Peshawar and having received 15-20 threat calls, the Tribunal does not accept that the applicant travelled to Peshawar approximately 15 times in the five years before he left Pakistan or that he received threat calls either warning him to stop travelling to Peshawar to get goods or for any other reason. Accordingly, the Tribunal does not accept that the applicant was specifically targeted by the Taliban or other anti-Bangash Shia militant groups when he was in Pakistan.
Does the applicant face a real chance of suffering serious harm from the Taliban and/or anti-Bangash Shia militant groups should he return to Pakistan?
As discussed with the applicant, the Tribunal finds that relevant country information indicates that that the security situation in Kurram Agency improved significantly in 2014. The FATA Research Centre (FRC) said in its Annual Security Report 2014 that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014 with a total of two incidents, one bomb blast and one target killing, recorded during the reporting period, killing three people and injuring one.[12] A UNHCR report on a protection cluster mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram[13]. Furthermore, a UNHCR report from June 2014, which detailed a review of those who had returned to a region in the Upper Kurram area, indicated that returnees were satisfied about the security situation in the area and felt safe and secure currently in the area of return.[14] The FRC’s Annual Security Report 2015 stated that the year marked a significant decline in terrorism-related incidents in the tribal areas of FATA, noting that militant violence declined by 40% compared to 2014. It is also reported that out of the total casualties in FATA in 2015, almost 65% were militants. From a security point of view, the FRC reported that the most turbulent area during the outgoing quarter (of 2015) in FATA remained North Waziristan and Khyber Agencies where military operations against local militants is ongoing.
[12] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, p. 46. The FATA Research Centre describes itself as a non-partisan, non-political and non-governmental research organization based in Islamabad. By contrast The Shia Post reported that 11 Shia Muslims were killed in Parachinar in 2014: see ‘311 Pakistani Shia Muslims Martyred in 2014’, The Shia Post, 1 January 2015, CISEC96CF1169.
[13] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.
[14] UN High Commissioner for Refugees, Protection Cluster , "Post- return monitoring in areas of return Sholzan Tangi, Upper Kurrum agency - June 2014", UN High Commissioner for Refugees, Protection Cluster , 30 June 2014, CIS2F827D91287
In its 2015 ‘FATA Assessment’ the South Asia Terrorism Portal (SATP) reported that civilian and security forces fatalities in FATA had recorded a seven year decline, while overall fatalities had been higher due to the increase in terrorist fatalities under the ongoing military operations in North Waziristan Agency and Khyber Agency. It reported that total fatalities through 2014 stood at 2,863, including 2,510 terrorists, 194 security forces personnel and 159 civilians; as compared to 1,716, including 1,199 terrorists, 319 civilians and 198 security forces personnel in 2013. While SATP noted the number of major incidents (each involving three or more fatalities) in FATA increased by 48.87 per cent in 2014 compared to the previous year, this was said to be principally due to the government’s counter-insurgency operations with the overwhelming number of fatalities occurring among groups registered as terrorists rather than civilians or security forces personnel. SATP reported that other parameters of violence such as suicide attacks, explosions and sectarian attacks remained low throughout 2014 with significantly less casualties from both suicide attacks and incidents of explosion. SATP recorded that sectarian violence in the region also registered a steep decline[15].
[15] SATP, FATA Assessment 2015,
The 2016 DFAT Thematic Report on Shias in Pakistan also indicated that the security situation in Kurram Agency had improved.[16] The report states that:
[16] DFAT Thematic Report, Shias in Pakistan,15 January 2016, sections 4.31–4.36.
· According to the FATA Research Centre (‘FRC’), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015.
· The 2013 ‘peace accord’ between Shia Turis and Sunni Bangash remains in place.
· DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015.
· Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.
· More than 3,700 families returned to their places of origin in 2014, including Parachinar and surrounding villages in upper Kurram. This represents approximately 25 per cent of those formerly displaced - most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October – November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.
· According to the SATP, there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight.
· FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.
· At this time DFAT assessed there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb.
· At this time DFAT assessed there is a low level of generalised violence in Kurram and Orakzai Agencies.
The Tribunal notes, however, that the situation changed significantly in 2017 during which there were five major terrorist attacks in Parachinar that resulted in the deaths of more than 130 people, with 460 more wounded.[17] This resulted in DFAT revising its assessment of the risk faced by Shias in Kurram Agency, particularly Parachinar. In its 2017 Country Information Report DFAT commented that, while it assessed that Shias in the FATA typically face a low risk of sectarian violence overall, in the context of a moderate level of militant and criminal violence across the region, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the FATA. While noting that Parachinar had experienced relative calm prior to the attack in January 2017, DFAT commented that the three large-scale attacks targeting Shias in Parachinar in the first six months of 2017, which killed more than 120 people and injured hundreds more, reflected the ongoing risks faced by Shias in Parachinar. DFAT assessed that Turis (and by extension Bangash Shias) in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shia faith. (DFAT comments that Shia make up around 40 per cent of the population of Kurram Agency and around 80 per cent in Upper Kurram where Parachinar is located. Most of the Shia in Kurram Agency are from the Turi tribe, an exclusively Shia Pashtun tribe of around 500,000 people and Parachinar largely comprises Turi Shia. The Bangash tribe is around 40 per cent Shia, and lives mainly in Orakzai Agency of FATA as well as parts of Khyber Pakhtunkhwa such as Kohat, Hangu and Peshawar.)[18]
[17] ‘132 killed in Parachinar terror attacks in 2017, Dawn, 30 December 2017, DFAT Country Information Report, Pakistan, 1 September 2017, sections 3.21-3.24, 3.61-3.65.
The Tribunal has also considered relevant country information since the most recent DFAT report was released in September 2017. Internet searches suggest that Parachinar and Kurram Agency are again experiencing a period of relative calm, revealing only a single reported incident to-date in 2018, which resulted in six member of a single family being killed when their vehicle struck an Improvised Explosive Device (IED) in Upper Kurram Agency in January 2018.[19] This is supported by the SATP (data to 17 June 2018),[20] which reported this incident plus another in April 2018 where five Frontier Corp personnel were killed and five injured when their border post was attacked from Afghanistan, and by the FRC First Quarter 2018 security report for FATA.[21]
[19] ‘Six of a family killed in landmine blast in Kurram’, Dawn, 31 January 2018, SATP, Major incidents of terrorism-related violence in Pakistan – 2018 (Data till June 17, 2018),
[21] FATA Research Centre, FATA Security Report, First Quarter 2018 (January-March), >
In its 2017 Country Information report DFAT indicates that, despite launching Operation Zarb-e-Azb, a major offensive against terrorist groups across the country, in June 2014 and introducing a National Action Plan (NAP) to counter terrorism later that year, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. DFAT states that militant groups remain active across Pakistan, despite their more limited access to former safe-havens in Khyber Pakhtunkhwa and North Waziristan, and that these groups continue to attack government and sectarian targets. DFAT comments that groups such as the TTP have splintered into several offshoot organisations and that, while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats. DFAT indicates that while militant attacks can occur anywhere, the security situation varies across the country. DFAT also comments that several interlocutors in Pakistan have told DFAT that the underlying conditions for militancy—particularly weak judicial and law enforcement institutions and economic under-development—have not been addressed, and speculated that violence would likely increase again after a period of relative calm.
DFAT states that sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools and that Shia Muslims continue to face a threat from anti-Shia militant groups, including Lashkar-e Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP, also known as Ahl-e-Sunnat-Wal-Jamaat or ASWJ), and various factions of the Tehreek-e-Taliban Pakistan (the Pakistani Taliban, or TTP). DFAT comments that sectarian violence has reduced significantly in recent years, particularly since Operation Zarb-e-Azb (and its successor, Operation Radd ul Fasaad) and the NAP were implemented, noting that, according to the Center for Research and Security Studies (CRSS), fatalities from sectarian violence fell by 20 per cent in 2016, following a 28 per cent drop in 2015 and a 32 per cent drop in 2014. DFAT notes, however, that the LeJ has claimed a number of attacks on the Shia community in recent years, particularly Hazaras in Quetta and other Shia groups in the FATA and Karachi, and that in an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shia.
The Tribunal finds that the relevant country information indicates that while the overall security situation in Pakistan is significantly improved since 2013-2014 (as a consequence of Operations Zarb-e-Azb and Radd ul Fasaad and the NAP), Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, and ethnic Turi and ethnic Bangash Shia Muslims are disproportionately affected by these threats. While the Tribunal considers that the available country information since the DFAT Report was issued on 1 September 2017 indicates that the situation for Shias in Parachinar has improved significantly since mid-2017, the Tribunal considers that the weight of the country information indicates that the security situation remains volatile and it is too soon to revisit DFAT’s most recent assessment that Shia Muslims in the Parachinar area of Kurram Agency face a moderate risk of sectarian violence from militant groups. While the Tribunal does not accept that Mr [A] was specifically threatened and targeted for harm by the Taliban or other anti-Shia militant groups while he was in Pakistan, the Tribunal finds that the DFAT assessment applies to all Shia Muslims in the Parachinar region of Kurram Agency. Accordingly, the Tribunal finds that Mr [A] faces a real chance of persecution amounting to serious harm, on account of his Bangash ethnicity/race and Shia religion, should he return to his home region in [Village 1], located [a number of] kilometres from Parachinar town in the Kurram Agency of the FATA.
Availability of State protection
In this case, the harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Pakistani authorities cannot and will not protect him from that harm. In his evidence the applicant states that the authorities are unable to protect him and may even deny him protection because he is Bangash and a Shia.
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
While the Tribunal finds that the NAP and military operations such as Operation Zarb-e-Azb are indicative of attempts by the government to take action in relation to the activities of militant groups, the DFAT report indicates that Pakistan continues to face security threats from militant groups and that anti-Shia groups, such as LeJ, SSP, JeM and the TTP, continue to operate across Pakistan despite government and military operations disrupting their activities. DFAT comments that several interlocutors in Pakistan told DFAT that the underlying conditions for militancy – particularly weak judicial and law enforcement institutions and economic under-development – have not been addressed, and speculated that violence would likely increase again after a period of relative calm, and noted that there had been an increase in the frequency and severity of terrorist attacks across the country since late 2016. DFAT comments that despite the measures introduced under the NAP to curb violence across the country, successful prosecutions of those responsible for politically-motivated or sectarian violence are rare, due in part to the ineffectiveness of police investigations and the effect of threats against judges, lawyers and witnesses. DFAT also assesses that state protection in Pakistan is limited by resource shortages, personal socio-economic status and in some cases, political will.[22]
[22] DFAT Country Information Report, Pakistan, 1 September 2017.
According to UNHCR Eligibility Guidelines relating to religious Minorities in Pakistan, the government has been criticised for failing to protect Shia Muslims from attacks, and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks on Shias in Pakistan. [23]
[23] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 01 January 2017, p.55-56..
The US Department of State reports that the Pakistan police often failed to protect members of religious minorities, including Shias, although there have been improvements.[24] The US Commission on International Religious Freedom (USCIRF) also assesses that despite government efforts and positive rulings by the Supreme Court, the government failed to provide adequate protection to targeted groups or to prosecute perpetrators or those calling for violence.[25]
[24] US Department of State, Pakistan – Country Reports on Human Rights Practices 2015, 13 April 2016, section 1(d).
[25] USCIRF, Annual Report 2015 - Pakistan, 30 April 2015, p.2.
The information before the Tribunal indicates that the security situation remains dangerous and volatile, with continuing terrorist attacks being undertaken by militant groups with an openly anti-Shia agenda. The Tribunal finds that the level of protection available to the applicant from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds, based on the country information, that Mr [A] would not be able to avail himself of effective state protection against the harm he faces. It follows that the Tribunal finds that Mr [A] faces a real chance of persecution for reasons of his ethnicity/race and religion if he returns to his home region in the Parachinar district of Kurram Agency in Pakistan, now or in the reasonably foreseeable future.
Relocation
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.
The applicant indicated in his statutory declaration of 24 November 2014 that he could not live anywhere else in Pakistan as there is no other place where he would be safe because he would continue to be at risk because of his religion and because he is a member of the Bangash tribe. He indicated that he spent a short time in [City 1] but there were bomb blasts there and he also went to [City 2] but it was even worse there with many blasts and killings. In the submission of 5 December 2018 the representative states that Mr [A] faces a real risk of persecution in all parts of Pakistan which will be inflicted by state authorities, and therefore neither relocation nor state protection can be considered further. The Tribunal does not accept that this is the case as the harm the applicant fears is principally from non-state agents, being the TTP and other anti-Shia militant groups such as LeJ.
At the hearing the applicant commented that if he returned to Pakistan now he would be a target as he is ‘already on their list’ and they know he has been in Australia. He said that his family have told him that kidnappings are still occurring and that people are being killed. When asked if this was in Kurram Agency he said it is happening all over Pakistan. He said he has been in Australia since 2011 and has had no issues here and has settled well. The Tribunal discussed with the applicant advice from DFAT indicating that they assess that returnees to Pakistan who departed legally and have spent time in the west are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations, despite a generally increasing conservatism and religiosity across the country.[26]
[26] DFAT Country Information Report, Pakistan, 1 September 2017, sections 3.139-3.140 and 5.18-5.21.
The applicant replied that he was used to life in Australia and did not believe he would be able to spend a month in Pakistan before he would be killed. The Tribunal discussed with the applicant the DFAT advice that DFAT assesses that Shia Muslims in Lahore and [City 1] face a low risk of sectarian violence and that Turi Shias in other parts of the country (outside of Kurrum Agency) tend to face a level of risk similar to other non-Hazara Shia groups,[27] and that there are established Turi Shia groups in [City 1].[28] The applicant indicated that to get accommodation he would have to show his ID card which would create issues for him because it would reveal he is a Bangash Shia from Kurram Agency. He said he would not be able to find employment and support himself, that he would face security issues travelling on the roads, and that kidnappings are still happening in places like [City 1]. In relation to his past stays in [City 1] and [City 2] the applicant indicated that he only stayed in [City 1] for a [certain amount of time] while waiting for his passport to be issued and that, similarly, he only stayed in [City 2] for a brief time while waiting to catch a flight to [Country 1] when he departed Pakistan. He indicated that he has no relatives or other support networks outside of Kurram Agency.
[27] DFAT Country Information Report, Pakistan, 1 September 2017, sections 3.24 and 3.53.
[28] DFAT Thematic Report, Shias in Pakistan, 15 January 2016, sections 5.5-5.6.
In considering whether it is reasonable, in the sense of practicable, for the applicant to relocate to another area of Pakistan where the risk of harm to him, as a Bangash Shia, might be lower than the risk he faces in his home area in the Parachinar region of Kurram Agency, the Tribunal has also considered advice from DFAT that some sources have told DFAT that Bangash Shias may be physically distinguishable from other Pashtuns (while indicating the differences are less significant than those between Hazaras and other Shias) and that Bangash and Turi accents are easy to distinguish from other Pashtun groups.[29] DFAT also notes that while there are significant numbers of Pashtuns in Lahore, there are few Hazaras and Turis in Lahore (the Tribunal considers that by extension this would also apply to Bangash Shias). DFAT further comments that Pashtuns in Lahore (presumably Sunni Muslim Pashtuns) have claimed to have been harassed by police and security forces and to have had difficulty obtaining identification, and that large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities - due largely to the fact that the TTP’s support base is primarily (Sunni Muslim) Pashtun. DFAT notes that [City 1] has a strong security presence including checkpoints throughout the city and patrols by paramilitary Rangers, which provide a strong deterrent to militant groups planning attacks in the city, and that large scale militant or sectarian attacks are rare.[30]
[29] DFAT Thematic Report, Shias in Pakistan, 15 January 2016, section 3.6.
[30] DFAT Country Information Report, Pakistan, 1 September 2018, sections 5.14-5.16.
DFAT comments that it has observed that Shias generally relocate with relative ease due to family and communal networks and that the higher expenses of living in cities such as Lahore and [City 1] are offset by higher wages, particularly for those with relevant skills, such as foreign language and computer skills. DFAT reports, however, that some Turi migrants in [City 1] have reportedly received unspecified threats from sectarian elements. DFAT notes that [City 1]-based think tanks have indicated that there is a declining incidence of kidnapping for ransom incidents in [City 1] and comments that kidnappers have historically targeted Ahmadis and, to a lesser extent, wealthy migrants from tribal areas.[31]
[31] DFAT Thematic Report, Shias in Pakistan, 15 January 2016, sections 4.22 and 5.4-5.6.
As noted above, the Tribunal does not accept the applicant’s claim that he was specifically targeted for threats and harm in the past, and therefore does not accept that he currently is a specific target of any militant groups. In considering whether relocation is reasonable (in the sense of practicable) in his particular circumstances, however, the Tribunal finds that as a Bangash Shia from Kurram Agency (which will be apparent from his physical appearance, accent, name and the details contained in his National Identity Card) the applicant will be more readily identifiable as a Shia Muslim that other Shias in Pakistan and will be more readily identifiable as a Bangash Shia from the Parachinar region, a group that, along with Hazaras and Turis, are a particular focus of anti-Shia militant groups including the TTP and LeJ. This will increase the level of risk that the applicant would face. The Tribunal also considers that the applicant’s lack of family networks outside of Kurram Agency and his lack of good English language skills, education , [skills] in demand such as computer skills, and general skilled work experience (he has worked assisting his father as a [Occupation 1] in Pakistan and [in other occupations] in Australia) increase his vulnerability should he seek to relocate in Pakistan. The Tribunal considers that it would be more difficult for Mr [A] to secure work that would offset the higher costs of living in a city such as [City 1] given his limited work skills.
In relation to the applicant’s expressed concerns regarding the risk that he could be kidnapped and murdered, as well as the information from DFAT cited above the Tribunal is aware of press reporting suggesting that some Turi Shias from Kurram Agency have been kidnapped for ransom in Islamabad and Rawalpindi.[32] One of the sources suggested that Turis were targeted due to a perception that they were wealthy and have the capacity to pay the ransom, as the local militants know about the financial positions of the Turi tribe and target those who can pay the ransom. The source added that poor people who were kidnapped for ransom were killed as they could not pay the ransom.
[32] ‘Kurram residents face insecurity in Islamabad’, Dawn, 15 December 2011, >
In assessing the applicant’s claims in relation to this matter, the Tribunal had regard to a 2017 judgment of the Federal Circuit Court of Australia (FCCA) indicating that it is important to focus on the perception of militant groups in such circumstances rather than the reality of whether or not a potential kidnapping victim was wealthy.[33] In this regard, notwithstanding DFAT’s assessment that persons who departed Pakistan legally are not subject to additional risk of violence on the basis of having spent time in western countries, the Tribunal considers that, in the particular circumstances of this case where the applicant is a Bangash Shia from Parachinar district, it is relevant that his having lived in Australia for six years from 2012 may become known on his return to Pakistan (including as he is dealing with the complexities of relocating, such as changing his place of residence status, seeking accommodation and finding employment) because it could increase the risk that he would be perceived to be wealthy, thereby increasing the risk of kidnapping over and above that faced by other Bangash Shias seeking to relocate to a city like Islamabad directly from Kurram Agency.
[33] AAY15 v MIBP [2017] FCCA 476.
In conclusion, having given careful and cumulative consideration to the applicant’s personal circumstances, the Tribunal finds that it is not reasonable for the applicant to relocate to any other part of Pakistan to avoid the risk of Convention based persecution he faces. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Paul Windsor
Member
SATP, Sectarian Violence in Pakistan, 1989-2018 (Data till June 17, 2018),
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