1703287 (Refugee) - [2018] AATA 409

1703287 (Refugee) [2018] AATA 409 (31 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703287
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Paul Millar
DATE:31 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 31 January 2018 at 9:09am

CATCHWORDS
Refugee – Protection visa – Pakistan – Federal Circuit Court remit – Ethnicity – Pashtun Bangash – Religion – Shia – Social group – Former shop owner – Fear of Taliban and Sunni extremists – Internal relocation
LEGISLATION
Migration Act 1958, s s 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZVRA v MIBP [2016] FCCA 783
SZVRA v MIBP [2017] FCA 121
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who the Tribunal finds to be a citizen of Pakistan, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] August 2013.[1] The Tribunal (differently constituted, as the former Refugee Review Tribunal and referred to in this decision as ‘the first Tribunal’) affirmed the delegate’s decision.[2] The Federal Circuit Court upheld the first Tribunal’s decision but the Federal Court remitted the decision for reconsideration.[3] The decision of the first Tribunal was remitted on the basis that it did not consider certain claims made by the applicant with respect to the issue of relocation.[4] The applicant appeared before the Tribunal on 10 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashtun and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.
[1] The Tribunal's finding as to citizenship is based on documents that the applicant submitted to the Department relating to his identity in Pakistan (see folios 69-78 of the Department file).
[2] See RRT Case Number 1311649 (20 October 2014).
[3] See SZVRA v MIBP [2016] FCCA 783; SZVRA v MIBP [2017] FCA 121.
[4] Those claims were that it was not reasonable to expect him to relocate to another part of Pakistan because he did not have religious or tribal connections to the proposed site of relocation and that in that site he would be afraid to practice his religion.
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. 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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration (‘the Department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[5]
[5] In this respect the Tribunal has taken account of DFAT Country Information Report Pakistan 1 September 2017.
FINDINGS
For the following reasons, the Tribunal concludes that the decision under review should be affirmed. According to his evidence to the department and the Tribunal, the applicant claims protection on the ground that the Taliban and Sunni extremists will harm him because he is a Pashtun Bangash Shia from Parachinar.[6] The Tribunal finds credible the following claims made by the applicant in his evidence at the Tribunal hearing (except where indicated otherwise below).
Claims the Tribunal finds credible
[6] The applicant's evidence to the Department and the Tribunal comprises the contents of his protection visa application forms; his evidence at an interview with an officer of the Department held [in] July 2012 (see folios 80-89 of the Department file); his statutory declaration made on 8 November 2012; his evidence at his interview with the delegate; his evidence at the hearing before the first Tribunal and his evidence at the hearing before this Tribunal.
The applicant is [age]-year-old Pashtun Shia man from the Bangash tribe. He comes from Parachinar in the Kurram Agency where his parents, sister and [brothers] live. When he lived in Pakistan, the applicant attended school to [a] level (‘year [number]’ as he told the Tribunal). At school, the Shia students would be called bad names by the Sunnis, the Shia students would respond in kind and verbal arguments ensued. However, he said that this was typical schoolboy behaviour and did not claim this as evidence of being targeted or harmed for being Shia.
In 2007 while still at school, the applicant worked part-time in a [shop]. In [year] the applicant finished his school education and purchased the [business]. He worked full time and operated this business by himself up until close to the time he left Pakistan. For his business, the applicant travelled to Lahore and Rawalpindi to purchase spare parts using his knowledge of Urdu for that purpose. Over time, he chose not to make these trips because of fears for his safety travelling out of Parachinar. He sold his shop before he left Pakistan. It was located in a central bazaar where other Bangash and Turi (Pashtun Shia) businesses were located.
The applicant claimed that after he purchased the [business] he received threatening letters left at the shop from the Taliban or Sunni extremists demanding that the shop be closed. This occurred approximately four or five times. When reminded that, to the first Tribunal, he said that he had trouble with Sunni customers, and when asked by this Tribunal what that was, he said that they could have been the people responsible for the threatening letters. When the Tribunal reminded him that he had also mentioned to the first Tribunal that there were ‘Sunni enemies’ where his shop was located, the applicant said that what he meant was that there could have been Sunnis there who did not like Shia but he did not claim to have suffered harm from those people. He just said that such people posed risk to Shias.
The Tribunal put to the applicant that at no stage in his evidence to the Department or the first Tribunal did he mention receiving threatening letters at any time in his life in Parachinar. In response, the applicant said that was correct and he did not mention receiving these letters at those earlier stages because he was not physically threatened. The Tribunal rejects that response. If the applicant truly received threatening letters, he would have mentioned that in his evidence to the Department and the first Tribunal. That is the case whether or not he was physically threatened. Accordingly, the Tribunal does not accept that he received these letters.
The applicant never received threats over the telephone nor was he ever threatened by anyone in person. He was never physically attacked when he lived in Parachinar. In 2007 while walking back to his shop with two friends after purchasing some groceries fighting broke out between rival snipers on rooftops which caused everybody on the street to run for their safety. The applicant was able to get away safely but his two friends were shot dead. The applicant claimed that those firing the shots would have known him and were targeting him.
The Tribunal put to the applicant that at no stage in his evidence to the Department did he assert that he was specifically targeted in this incident. The Tribunal put to the applicant that the tenor of his evidence to the Department was that this was part of the general violence taking place in Parachinar in which he and his friends happened to become involved. The Tribunal put to the applicant that his former representative actually submitted to the Department that the applicant conceded that he had never been attacked or threatened by the Taliban. In response, the applicant said that possibly the representative did not hear him correctly or there was a misinterpretation. Further, at that time, he had gone through mental torture due to the deaths of many people on the boat in which he travelled to Australia. He claimed that this was still affecting him.
The Tribunal is not persuaded by those claims and finds that if the applicant had been or believed he had been specifically targeted in this incident he would have advanced that claim to the Department having had ample opportunity to do so. His claims about distress caused through the boat journey to Australia do not excuse this failure on his part. The Tribunal accepts that this incident occurred but does not accept that it occurred because of the applicant or that he was specifically targeted.
The applicant recalled two bomb explosions that took place about [distance] metres from his shop. When he was in [another country] another explosion occurred in the market where his shop was located. In June 2017 the person who purchased the shop where he had conducted [his] business was killed along with his son and explosions that took place in the market area where that shop was located. In support of this claim, the applicant submitted photographs sent to him by his mother which he said depicted the shop after the explosion.[7] However, the applicant’s evidence was that all of these incidents were part of the work of the Taliban or Sunni extremists against Shias as part of the conflict in Parachinar between the opposing sides. These explosions were not incidents specifically targeting the applicant.
[7] See folios 48 – 49 of the Tribunal file.
In terms of his family, the applicant’s father used to operate a [business] in Parachinar but in approximately 2007 he closed that business. This was because of the fighting taking place in the area at that time and concerns for his safety. He sold the business and the proceeds of the sale supported the family in addition to funds received from [an] uncle working overseas. The applicant’s father has not since worked and remains at home except to purchase groceries or go to the mosque. The applicant’s sister and his brothers did attend school for a period in Parachinar but they had stopped attending at the time he left Pakistan in late 2011. At present they do not go to school and this is because of their parents’ fears for their safety.
When he lived in Parachinar, no member of the applicant’s family was ever attacked. Since he left Pakistan, his family have not been harmed or attacked by anybody. They stay at home in fear of being hurt in explosions that could occur in Parachinar. The applicant has one brother who now lives in [a different country] where he seeks asylum.[8] In 2014 his father sent his brother out of Pakistan for his safety in view of the security situation in Parachinar. The applicant had seen through a social media website a photograph of a friend who had lost his legs in a blast in Parachinar. The applicant said those explosions could occur at any time and the government had shot several people because of them.
Assessment of whether the applicant has a well-founded fear of persecution based on a convention ground
[8] To the first Tribunal, the applicant said that his brother had gone missing and his whereabouts were unknown. However, to this Tribunal, the applicant said that was wrong. He said that because a number of people died on the boat in which he travelled to come to Australia his father did not want to upset him and refrained from telling him initially that he had sent his brother out of Pakistan. At the time he appeared before the first Tribunal he was under the impression that his brother had gone missing based on what he was initially told by his family.
To this Tribunal, the applicant said that the only ground on which he feared harm in Pakistan was his fear of the Taliban or Sunni extremists because he is a Pashtun Bangash Shia from Parachinar. In assessing the well-foundedness of his fear of persecution the Tribunal records its finding that the applicant was never physically attacked, threatened or harmed when he lived in Parachinar apart from one occasion in 2007 when he and friends happened to walk into an area where shots were being fired and from which the applicant managed to escape. While explosions have taken place at different times in an area of Parachinar close to where his former shop was located, and, in the most recent incident, that shop was damaged, none of those explosions took place to specifically target him.[9] Accordingly, the Tribunal assesses the risk of the applicant suffering serious harm as a Pashtun Bangash Shia man from Parachinar and not as somebody with any particular profile beyond those characteristics.[10]
Country Information
[9] In submissions of 17 August 2017, the representative submitted that at the hearing the Tribunal accepted that the applicant was at risk of ‘targeted harm’ which included a ‘targeted attack’ on the shop he used to own. The Tribunal rejects that submission as, based on the evidence set out above, the Tribunal does not accept that the applicant or his business was ever specifically and personally targeted in Parachinar. Rather the incidents he related were incidents that occurred as part of the conflict taking place in that area at that time.
[10] For the sake of completeness, the Tribunal records that although the applicant said in the hearing that people dying on the boat he used to come to Australia had caused him torment in the past and that it still affected him now, to the Tribunal's observation, he was able to meaningfully participate in the hearing and give evidence.
In its ‘Country Information Report Pakistan’, in terms of general security, DFAT states that although Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, there has been a significant reduction in the number of violent attacks.[11]This reduction has occurred as a result of Operation Zarb-e-Azb, a major offensive against terrorist groups across the country, and a National Action Plan to combat those groups.[12] Although such groups remain active and attack government and sectarian targets, these government and military operations have disrupted their activities and thousands of militants have been killed.[13] At the same time, serious crime across Pakistan has reduced significantly.[14] Further, this reduction in militant violence has occurred notwithstanding the presence of Islamic State which is said to be active but the degree of influence it holds being unclear.[15] Since late 2016 there has been an increase in the frequency and severity of terrorist attacks across Pakistan but the Army has responded by commencing a further nation-wide anti-terrorism operation in accordance with the National Action Plan mentioned above.[16]
[11] See DFAT Country Information Report Pakistan 1 September 2017 (‘Country Report’) at 2.30, 2.33. As to the extent of this reduction, at 2.33, DFAT states:
“According to the South Asian Terrorism Portal, more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013. Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians.”
[12] See Country Report at 2.31, 2.32.
[13] See Country Report at 2.34.
[14] See Country Report at 2.38.
[15] See Country Report at 2.41 DFAT there referring to isolated attacks in Quetta and Sindh.
[16] See Country Report at 2.37. DFAT referring to attacks in Lahore, Quetta, Peshawar, and in Sindh province.
In terms of harm for Shias in Pakistan, although they continue to face a threat from anti-Shia groups, there has been a significant reduction in sectarian violence in recent years.[17] In addition, Shia made up fewer than 15 per cent of those killed in sectarian violence in 2016 and they comprised a relatively small proportion of the total victims of sectarian violence.[18] Around 820 Shi’a have been killed in sectarian violence since the beginning of 2013, out of a total Pakistani Shi’a population of about 30 million people.[19] Accordingly, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence, a risk varying depending on geographic location, high-profile Shia facing a moderate risk of violence, as they are more likely to be targeted and Shias generally being most vulnerable during large gatherings, such as Ashura processions.[20] While low level anti-Shia discrimination occurs, DFAT assesses that Shi’a generally do not face significant levels of discrimination when seeking employment based on their religious affiliation.[21]
[17] See Country Report at 2.45, 2.46, 3.42. In terms of specific figures, at 2.45 DFAT states:
“The South Asia Terrorism Portal (SATP) reports that 35 incidents of sectarian violence killed 137 people during 2016, compared with 131 incidents and 558 deaths in 2013. The Pak Institute of Peace Studies assesses that around eight per cent of attacks carried out by militant groups in 2016 were sectarian in nature.”
At 2.46 DFAT states:
“In the first six months of 2017, at least 11 incidents of sectarian violence reportedly killed around 220 people across Pakistan. This includes the aforementioned attack at a Sufi shrine in Sindh province, which killed at least 88 people and injured several hundred others, as well as three separate attacks targeting Shi’a in Parachinar, Kurram Agency, which killed more than 120 people.”
At 3.42 DFAT states:
“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.”
[18] See Country Report at 3.43.
[19] See Country Report at 3.45.
[20] See Country Report at 3.46.
[21] See Country Report at 3.39.

With respect to the situation in Parachinar, DFAT states that in the first half of 2017 sectarian attacks occurred in Parachinar, targeting Shia and in which more than 120 people were killed.[22] DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups because of their religion.[23] DFAT assesses that Turis in other parts of Pakistan face a level of risk similar to other non-Hazara Shia groups.[24]
[22] See Country Report at 2.46.
[23] See Country Report at 3.24.
[24] Ibid.
Large Shia communities, Pashtuns and Pashtun Shias live in Islamabad.[25] Large scale militant or sectarian attacks in Islamabad are rare because of the strong security presence there and such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders.[26] In that city the Shia and Sunni communities are generally well integrated and DFAT describes Islamabad as a safe place for Shias, assessing that they face a low risk of sectarian violence there.[27] In addition, Islamabad has a population of around two million people, which includes a large number of internal migrants from all parts of the country and a population that is ethnically and religiously diverse thereby offering a level of anonymity for people seeking refuge from violence by non-state actors.[28]
Inferences drawn from country information
[25] See Country Report at 3.3, 3.18 and 3.33.
[26] See Country Report at 5.16.
[27] See country Report at 3.33, 3.51, 3.53. At 3.51 DFAT states:
“According to the CRSS, no deaths from sectarian violence occurred in Islamabad in 2016. There were fewer fatalities from sectarian violence in Punjab than in the other provinces in 2013, 2014 and 2015.”
[28] See Country Report at 5.14, 5.16.
From this country information the Tribunal draws a number of inferences. First, in an abundance of caution, the Tribunal infers that, in the light of the recent attacks in the Kurram Agency, and taking into consideration the possibility of the applicant having to travel out of Parachinar for business as he did when he lived there, there is a real chance that, if he was to live in Parachinar again, the applicant will suffer serious harm on the ground of being a Pashtun Shia. However, the Tribunal also infers, on the basis of the country information, that, objectively, in Islamabad there is no appreciable risk of the occurrence of the feared persecution and it is reasonable to expect the applicant to relocate there.[29]
[29] In drawing that inference with respect to relocation the Tribunal takes into consideration the following statements from the High Court with respect to relocation principle. The first is the enquiry as to whether it is reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution (See SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51). The second is that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country (See SZATVv MIAC (2007) 233 CLR 18 at [24]).
The Tribunal draws those inferences on the basis that, according to country information, there has been a significant reduction in militant and sectarian violence in Pakistan, there is a strong security presence in Islamabad and such violence is more likely to be against high profile community leaders. While the Tribunal is willing to accept that there is a real chance that the applicant will suffer serious harm in Parachinar as a Pashtun Bangash Shia, the Tribunal does not assess the applicant as having a profile beyond being a Pashtun Bangash Shia from Parachinar. He is not a high profile community leader, the profile of person more likely to be the victim of militant and sectarian violence in Islamabad.
The Tribunal takes into consideration from country information the fact that Shias are a small proportion of the victims of sectarian violence and in Islamabad, they face a low risk of sectarian violence. While there may be discrimination against Shias in society, according to country information, it is not significant. According to country information, in Islamabad, Shias and Sunni communities are integrated and the city’s population is ethnically and religiously diverse, it includes Shias, Pashtuns and Pashtun Shias as well as people from other parts of Pakistan who have gone to live there. Those factors, in the view of the Tribunal, further reduce the risk of the applicant suffering discrimination and harm in Islamabad. For all of these reasons, the Tribunal infers that the risk of the applicant suffering serious harm in Islamabad because he is a Pashtun Shia from Parachinar or on any ground is remote.
The Tribunal infers that it is reasonable to expect the applicant to relocate there because country information suggests that people of his ethnicity and religion live in that city and people have come from other parts of Pakistan to establish themselves there. The applicant told the Tribunal that he attained [a number of] years of school education and he operated his own business. Further it was the applicant’s evidence to the Tribunal that he would travel to other cities in Pakistan and use Urdu to do business in those places. Accordingly, the Tribunal considers that this applicant should be well placed to be able to establish himself in Islamabad, to find shelter and accommodation and subsist there.
Comments from applicant and submissions from representative on relocation
At the hearing, the Tribunal discussed country information with the applicant and put to him the inferences the Tribunal draws from that information as expressed above.[30] In response, the applicant made various comments and the representative has also provided written submissions on this issue. The Tribunal now turns to these comments and submissions.[31]
[30] The sources of country information discussed with the applicant at the hearing were superseded by the country information cited in this decision (which came into existence after the hearing). However, those sources were to the same effect and the country information cited in this decision was provided to the applicant after the hearing by letter dated 1 September 2017, thereby affording the applicant the opportunity to comment on it.
[31] These submissions were made in letters dated 8 and 17 August and 21 September 2017.
The representative referred to country information to the effect that the underlying causes of militancy had not been resolved, including links held by those groups with terrorist groups in Afghanistan themselves assisted by the Pakistan government. It was submitted therefore that violence could again increase. The representative referred to attacks both sectarian and against the state over recent years. The Tribunal acknowledges the continued presence and activities of militant groups in Pakistan but country information shows a significant reduction in militant and sectarian violence in recent years. Country information also shows that in Islamabad there is a low risk only of the applicant suffering serious harm in such violence. Accordingly it is far too speculative to find that this will change in the reasonably foreseeable future such that the risk to the applicant on these grounds will become a real chance.
Specifically with respect to sectarian violence, it was submitted that the recent attacks in Parachinar demonstrated risk for Shias across Pakistan. Should the applicant live in a Shia majority area in Islamabad he could be the victim of a targeted attack. He would be unable to practice his religion freely in that city without a fear of harm. The Tribunal has considered these submissions, but, country information indicates that the risk of the applicant suffering serious harm as a Shia in Islamabad is remote. While the applicant may fear that he could be attacked as a Shia that would not prevent him from practising his religion nor would attending the mosque to practice his religion in those circumstances amount to serious harm.
It was submitted that there are no Bangash mosques in Islamabad (a claim also made by the applicant). There may not be Bangash mosques in Islamabad but country information makes clear that the city has a Shia population and no country information has been submitted demonstrating that attending a Shia mosque that is not also Bangash means the applicant cannot practice his religion.
The representative presented extracts from the guidelines issued in January 2017 by the United Nations High Commissioner for Refugees (‘UNHCR’) to the effect that since 2012 attacks against Shias had increased and they could occur in public places and, further, that because militants had ties to Pakistani authorities and they had wide reach, those at risk of being targeted by them generally could not relocate safely. The country information relied on in this decision is more recent than the UNHCR guidelines and clearly indicates a reduction in militant and sectarian violence. The applicant himself was not personally targeted in Parachinar and the Tribunal does not accept that he would be of nationwide interest to militants in Parachinar such that they would seek to locate and harm him in Islamabad. The risk of them doing so is remote.
In these submissions, the representative briefly referred to sources of country information stating that there had been ‘attacks” in Islamabad and that such attacks were on the rise (in 2014) but without providing any further detail about that. The applicant claimed the city was not safe and people could be threatened at any time. The Tribunal prefers the country information on which it relies being very recent and also based on information from numerous sources. That information is to the effect that large scale militant or sectarian attacks are rare in Islamabad and the applicant is not a high profile leader being the type of person most at risk at present.
The representative submitted that Pashtun Shias from Parachinar were at greater risk of harm than ordinary Shias because of the conflict in their native area with the Taliban. It was submitted that because of the conflict wherever they went they would be perceived as being anti-Taliban. It was submitted that through his accent and name the applicant was identifiable as a Pashtun Shia Bangash from Parachinar. The applicant said that Sunni extremists lived in Islamabad, ‘Parachinar Pashtuns’ could be targeted and there was no guarantee that he could live there safely.
The Tribunal is willing to accept that the applicant would be identifiable as a Pashtun Bangash Shia from Parachinar. Sunni extremists in other parts of Pakistan familiar with the past conflict in Parachinar may perceive him as being opposed to them. That may place him at greater risk of harm above ordinary Shias. However, while the country information on which the Tribunal relies in this decision indicates that Pashtun Shias live in Islamabad, there is no mention that they are attacked on that or any other basis. If it was the case that Pashtun Shias including those from Parachinar were attacked in Islamabad because of their ethnicity, origins and religion this would be reflected in up to date country information but it is not.
The representative submitted that potentially there could be differences between Turi and Bangash living in Islamabad that could inhibit support or protection for the applicant. The representative provides no country information that supports this assertion and the Tribunal rejects it. The representative then more broadly submitted that large numbers of Pashtuns had been arrested on suspicion of terrorist activities as part of the military operation against militants. That may be the case but that falls well short of demonstrating that there is a real chance that the applicant will be harmed by state agents in Islamabad because he is Pashtun. The applicant has no links to militant groups. He is a Shia (not Sunni) and his own ethnic group was being attacked by militants in Parachinar. There is no other evidence before the Tribunal to suggest that he would be suspected of terrorist activities.
The applicant and representative submitted that it was not reasonable for the applicant to relocate because he did not have family outside Parachinar and had never lived away from family. They both submitted that the applicant did not have any tribal or religious connection to Islamabad. They both claimed that without those connections the applicant would not secure accommodation, employment, including being able to start a business and therefore he would not be able to subsist.
To support these submissions the representative referred to a source of country information issued as long ago as 2011 referring to the importance of close relations with ‘kinsfolk’. The representative referred to a further source issued in March 2017 stating that ethnicity did not amount to social support that would arise from familial connections. The representative also referred to a report by DFAT issued in 2016 relating to Shias (now superseded by the report relied on in this decision) referring to Shias being able to relocate because of family and communal networks, the representative suggesting that therefore such networks were essential to relocation. To this, the representative added that Pashtun culture emphasised tribal or family relations.
The Tribunal is willing to accept that if the applicant had familial, tribal, or, in some sense, religious connections in Islamabad, this would help him to establish himself in that city in terms of providing social support and assisting him to find accommodation and work. However, that does not mean that without those connections, the applicant will be unable to subsist. Country information provides that there is not significant discrimination against Shias and Islamabad has populations of Pashtuns, Shias and Pashtun Shias. People from other parts of Pakistan have come to live there. Country information relied on in this decision does not indicate that for being a Pashtun Shia from Parachinar the applicant will be denied employment and accommodation nor that the ability to subsist in a different location can only occur if one has ‘connections’ in that place.
The representative and applicant submitted that the applicant had only a low level of education and no particular skills. His Urdu capacity was limited. Considered with his lack of tribal and religious connections the applicant would not find work. The cost of living in Islamabad is very high and he would have to share accommodation with other families to afford the cost of living but he did not have any familial link in Islamabad. Further, the applicant claimed that people there supported themselves through funds remitted by family members in other countries (and so would not provide employment for him). He said that he did not have a budget to run a business in Islamabad.
The Tribunal is not satisfied on the information before it that accommodation, employment and the ability to subsist can only be attained with ‘connections’ (in the sense discussed above). The applicant told the Tribunal that he undertook [a number of] years of school education and was sufficiently enterprising to be able to open and operate his own business. He told the Tribunal that when travelling to other places in Pakistan for business he used Urdu. The Tribunal considers that therefore he should be well placed to secure employment and accommodation in Islamabad, whether or not at present he has funds to be able to start a business. While he claimed that people in Islamabad, in effect, did not work and relied on funds remitted from abroad no country information was submitted to support that claim and it is rejected.
It was submitted that the applicant would want to travel back to his native town to see his family and making such road travel (in and out of Parachinar) would be dangerous. The applicant also claimed that he would not be able to afford such travel. The applicant said that his time away from family in Australia had been difficult. The Tribunal can acknowledge the applicant’s desire to see and be with family. The Tribunal has accepted that there is a real chance that the applicant will suffer serious harm in Parachinar taking into account the danger of travel in and out of that city. However, even so, relocation to Islamabad remains reasonable notwithstanding the fact that he could not safely travel to Parachinar to see family. The risk of the applicant suffering serious harm there on any ground is remote and the Tribunal finds that he is sufficiently resourced from his education and past employment experience to be able to subsist there. While he may not be able to travel to see family this would also apply had he been granted protection in Australia (on the grounds he now claims protection).
The representative made reference to a number of earlier decisions by this Tribunal (differently constituted) with respect to Pashtun Shias from Parachinar. The Tribunal is not bound by these decisions and the country information on which these decisions are based is out of date. This is because these decisions were made well before the country information relied on in this decision. Indeed, some of these decisions were issued as long ago as 2013. The Tribunal prefers the country information used in this decision being the most recent in time and because it gives a far more up-to-date and accurate assessment of conditions in Pakistan against which to assess the protection claims of this applicant.
The Tribunal can understand that in view of his experiences in the past in Parachinar, were he to relocate to Islamabad, the applicant would naturally have some degree of fear about being the victim of violence in that city, sectarian or militant. In addition, the Tribunal also considers the claim the applicant made in the hearing about ‘torment’ caused to him by the deaths of people on the boat he used to travel to Australia. However, none of these matters mean that it is not reasonable to expect him to relocate to Islamabad. The risk of the applicant suffering serious harm in Islamabad on any ground is remote. While he may be apprehensive about going to live in that city, the Tribunal has given reasons above why he is well placed to establish himself there. At the hearing the applicant did not present as someone suffering from any form of mental illness and no medical evidence has been put before the Tribunal to suggest that he is. His experiences on his journey to Australia will not prevent him from using his skills to establish himself in Islamabad.
The Tribunal has also considered the claims and submissions about the applicant’s protection claims made to the Department and to the first Tribunal. They are broadly similar to those that the Tribunal has dealt with above. Country information used by the delegate, the first Tribunal and also country information put before the delegate and first Tribunal on behalf of the applicant was issued before the decision of the first Tribunal dated 20 October 2014. That information is well out of date and the Tribunal prefers the country information in this decision which is recent.
One submission to the Department asserted that the applicant belonged to a particular social group of Shias from Parachinar. There is no need for the Tribunal to determine whether such a group exists because, for the reasons given above, the risk of the applicant suffering serious harm in Islamabad on those grounds is remote. The Tribunal also notes that to the first Tribunal the applicant claimed that reports of violence against Shias did not reflect the true situation in Pakistan. The Tribunal rejects that claim because it considers that human rights practices in Pakistan are well reported, this being borne out by the number of sources used by DFAT to prepare its report on which this Tribunal relies.

For the reasons given above, the Tribunal finds that there is a real chance that the applicant will suffer serious harm based on a convention ground in Parachinar. However, for the reasons given above, the Tribunal finds that the inferences it draws from the country information are correct and therefore the Tribunal finds that it is reasonable to expect the applicant to relocate to Islamabad where objectively, there is no appreciable risk of the occurrence of the feared persecution. Accordingly, the applicant does not hold a well-founded fear of persecution based on any convention ground.
Complementary protection
With respect to the complementary protection criterion, the Tribunal finds that there is a real risk that the applicant will suffer significant harm in Parachinar, for the same reasons it finds that there is a real chance that he will suffer serious harm in that location. However, the Tribunal finds that it would be reasonable for the applicant to relocate to Islamabad where there would not be a real risk that he will suffer significant harm. The Tribunal makes that finding on the same grounds that it finds that it is reasonable to expect the applicant to relocate to Islamabad where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Accordingly, there is taken not to be a real risk that the applicant will suffer significant harm in Pakistan. For these reasons, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Pakistan, there is a real risk that he will suffer significant harm.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Paul Millar
Member