1704884 (Refugee)

1704884 (Refugee) [2017] AATA 1446 (11 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704884
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Christopher Smolicz
DATE:11 August 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 11 August 2017 at 11:36am

CATCHWORDS
Refugee – Protection visa – Pakistan – Federal Circuit Court of Australia remittal – Religion – Shia Muslim of Pashtun ethnicity– Imputed political opinion – Turi Bangash tribe – Fears harm from anti-Shia extremist groups
LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1
MZYLH v Minister for Immigration & Anor [2011] FMCA 888
SZATV v MIAC (2007) 233 CLR 18
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 claims to be a citizen of Pakistan applied for the visa [in] November 2012.
[In] March 2014, the delegate of the Minister for Immigration refused to grant the applicant a Protection (Class XA) visa. The applicant subsequently applied to the Tribunal for review of this decision. The Tribunal (differently constituted) affirmed the decision not to grant the applicant a protection visa (the first Tribunal).
The applicant subsequently applied to the Federal Circuit Court of Australia (FCCA) to review the decision. [In] February 2017 FCCA quashed the first Tribunal’s decision and remitted the matter back for reconsideration because the first Tribunal failed to give active, real and intelligent consideration to most recent country information about the perceived threat of ISIS in the applicant’s home area.[1]
[1] [Details deleted].
Accordingly, having been remitted to the Tribunal from the FCCA the matter was brought back before the Tribunal for reconsideration.
The applicant appeared before the Tribunal on 11 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 has taken into account the policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT Thematic Report Shias in Pakistan dated 15 January 2016).
The applicant’s factual claims and the Tribunal’s findings
The Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes this evidence from the first Tribunal decision, the applicant’s statutory declaration dated [date] November 2012 and the applicant’s evidence at the hearing.
The applicant claims to be a citizen of Pakistan who was born on [date of birth] in [Town 1], Parachinar, in Kurram Agency, in the Federally Administered Tribal Areas (FATA), Pakistan. He lived in [Town 1], Parachinar, in Kurram Agency, FATA from November 2002 to 2007. From 2007 to March 2012 he lived in [Country 1]. He returned to Pakistan and resided in [Town 1] from March 2012.
He completed [number of] years education and is fluent in Pashto and Urdu and can speak and read Arabic/Persian. The applicant described his occupation before coming to Australia as [occupations]. He departed Pakistan legally [in] April 2012 traveling on his Pakistani passport. He arrived [in] July 2012 traveling from [a second country] as an unauthorised boat arrival. His [family members] are residing in Pakistan.
The following is the statutory declaration made by the applicant attached to his protection visa application in support of his claims:
Background Information:
My name is [name] and I am a [age] year old male born in [Town 1], Parachinar, FATA, Pakistan. My ethnicity is Pashtun and I am of the Turi Bangash Tribe. My religion is Shia Muslim. I am married and have [number] children. My entire family is currently residing in Parachinar, Pakistan.
When the people in Afghanistan attacked people in Parachinar, two of my [uncles] were killed. This was too much for my father to bear, and he died [in] approximately 1989.
Why I left my home country:
I left Parachinar in 2007 originally due to work opportunities. I was in Parachinar at the very early stages of the Taliban invasion of our area. I recall that there was an attack which took place on April 2007 and I left soon after this and before the full-scale takeover by the Taliban of Parachinar.
The Taliban entered Parachinar in 2007 because they were attempting to get through to the American bases in [Afghanistan]. The route through Parachinar was highly convenient for them because Parachinar is mountainous and there was more safety for the Taliban in taking this route. Given that this route is in Parachinar, it was under the control of the Bangash and Turi tribes who were not supporting the Taliban in their attacks on the Americans. The tribes were not allowing them to get through to the American base because they were afraid of retaliation by the Americans if they cleared the passage for the Taliban to Pakistan.
Due to this disapproval and resistance by Bangash and Turi tribes, the Taliban formed a great hatred for us. Their hatred also stemmed from the fact that they are Sunni Muslims and we are Shias. As Shias, the Taliban thinks that we are not Muslims and they call us infidels. They are particularly bitter towards us because we are also Pashtuns like them, but we are Shias. They believe that we should be on their side and we are not. Another reason why we were afraid of the Taliban taking over is that they would be trying to enforce their own version of Islam upon us. For example, they would try and make us grow a beard and stop females from studying.
The attacks in Parachinar have only escalated since 2007. The Taliban continuously bombed the area and many people have been killed. The Taliban especially target those that are from the Bangash tribe as we are seen as dissenters. In November 2007 there was a large attack in which many people were killed and injured. Mybrother [was injured] in this attack.
I was fortunate enough to be in [Country 1] at the time that these attacks were taking place but was compelled to return on some instances to Pakistan to take care of my ill brother.
In March 2012, I returned to Pakistan permanently as I was no longer able to live in [Country 1] due to visa issues. The conditions in Parachinar were very bad. Food was difficult to come by, roads were blocked and we struggled to travel outside of Parachinar. The Taliban was very close to our village. Their attacks were becoming more frequent and they would be shooting missiles which killed many people.
I was approached on several occasions by members of the Bangash tribe to join them in fighting against the Taliban. When I refused they would threaten me if I did not join them. I was the only person they could go after in my family because my father is deceased and my brother is disabled.
Due to all the above factors, I realised that if I did not leave the country, I would be killed.
What I fear might happen if I go back to my home country:
I am fearful of returning to Pakistan as I am certain that I will be killed.
Who I think will harm or mistreat me if I go back:
I believe that I will be harmed and mistreated if I was to return to Parachinar by the Taliban who are still highly active in the area. Even if I was to live elsewhere, there are still many extremists groups in other parts of Pakistan who are affiliated with the Taliban. Such groups include the Lashkar-e-Jhangwi and Sipah-e-Sohaba. Lastly, I am also fearful of the member of the Turi tribe who regularly ask other strong and healthy members of the Turi tribe to join them in their fight against the Taliban.
Why I believe they will harm or mistreat me if I go back:
I believe that I will be harmed and mistreated in Pakistan because I am a Shia Muslim and I am also a member of the Bangash tribe.
It is well known that the Taliban dislike the local tribes of Parachinar who have opposed them. We are easily identified as being Bangash and Shia Muslims from the way that we offer our prayers, the scars on our back which we have from participating in the Muharram festival of zangeer, our identity cards and our distinct Pashto accent.
Further to this, because we share the Pashtun ethnicity with the Taliban, they expect us to support them. The fact that we don't and that we are of a Shia faith that they oppose, this only heightens their anger towards us. They might believe that we have betrayed them and we haven't assisted them in their case.
The fact that I have been outside the country for a very long period of time is also going to work against me. If the Taliban finds out that I came to a Western country to seek Australia's protection, which I am sure that they will because news travels fast in Pakistan, they will no doubt target me and kill me. It is obvious that they hate the Americans and the westerners and given that I am now affiliated with foreigners, I will be singled out and killed. They will think that I am an infidel and that I am not even supporting my own people.
I cannot live anywhere in Pakistan either. The persecution of our people is not just limited to Parachinar. Even if I lived in other areas of Pakistan, I would be easily identified as mentioned previously from the manner in which I pray, my accent and my identity documents. The pro-Taliban terrorist groups operate in other areas of Pakistan as well.
I am also fearful of being harmed by the Turi Shias who have tried to recruit me. I have refused to join them and they may believe that I have betrayed them.
Why I believe the authorities in my home country will not protect me if I go back:
I cannot seek protection from the Pakistani authorities because I believe they themselves might be the ones that might be supporting the Taliban. If they wanted to resolve the issue, they would have done so by now.
Why I think I will suffer significant harm:
I believe that I will suffer significant harm if I was to return on the basis that I am a member of the Bangash tribe and a Shia Muslim.
Other matters I would like the Department to take into consideration:
Many of the dates that I have provided in my application are approximates.
Delegate’s decision
[In] March 2014, the delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection (Class XA) visa. The delegate had regard to country information and accepted the applicant’s claims that his [home area] of Parachinar is a volatile and dangerous place where there has been serious sectarian and politically motivated violence. The delegate found that there was a real chance that the applicant would face serious harm if he returns to Parachinar in the Kurram Agency or anywhere in FATA or in the NWFP in the reasonably foreseeable future. The delegate noted however that these disputes arose essentially due to the Taliban’s attempts to appropriate the applicant’s home area for strategic reasons and these conflicts are “purely territorial.” On this basis the delegate did not accept that the applicant as a Bangash Shia from Kurram Agency, will be personally subjected to additional attention from extremist, were he to relocate to another part of Pakistan.
The first Tribunal decision
The first Tribunal had regard to country information and reached a different conclusion from the delegate about the security situation in the applicant’s home area. The first Tribunal found that the security situation had improved in recent years and there had been some stabilisation in the region. The first Tribunal appreciated that there will continue to be instability as a result of the authorities continued struggle with terrorists, militants and sectarian groups but did not accept the applicant would face a real chance of serious harm as a result of counterinsurgency operations in FATA.
New claims and evidence
The Tribunal was provided with a statutory declaration dated [date] July 2017 in which the applicant made the following additional claims.
The applicant claimed that he has struggled to recall exact dates of events in the past because he has not kept any records. He has given approximate dates and now realises they may have been recorded as exact dates.
The applicant also claims he fears harm from the Taliban because of [a relative]’s affiliation with the Peace Committee and his status as a Bangash elder in [Town 1].
His memory is also poor due to his poor mental health.

Issue

The issue in this case is whether the applicant meets the refugee or complementary protection criteria because
· he is a Shia Muslim who fears harm from anti-Shia extremist groups including the Tehrik-e Taliban Pakistan (TTP), ISIS (Daesh), Lashkar-e Jhangvi (LeJ) among others.
· of his imputed political opinion, namely being opposed to the Taliban by virtue of his Bangash tribal affiliation.
For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.
Country information
DAFT’s Thematic Report – states that Pakistan is ethnically and linguistically diverse. Despite being a majority Muslim state, the population is characterised by significant religious and sectarian diversity. Approximately 95 per cent of Pakistan’s population of 190 million is Muslim. Seventy five per cent of Pakistan’s Muslims identify as Sunni and 20 per cent as Shia.
Shias are represented across most of Pakistan’s ethnic, linguistic and tribal groups. These communities include the Turis, Bohris, Baltis, and some clans within the Bangash Pashtun tribe.
At the hearing the applicant confirmed that he belongs to the Bangash Pashtun Tribe.
DFAT advsie that the majority of the Shia population in the FATA is concentrated in Kurram and Orakzai Agencies. Shias account for 40 per cent of the population in Kurram Agency, which is estimated to number approximately 935,000 people. Upper Kurram is predominantly Shia (approximately 80 per cent), while Central and lower Kurram are majority Sunni. Most of these Shias are from the Turi tribe, an exclusively Shia Pashtun tribe comprising approximately 500,000 people dispersed throughout Pakistan. Shias also make up approximately 40 per cent of the Bangash tribe, which populates Orakzai Agency, as well as Kohat, Hangu and other settled parts of Khyber Pakhtunkhwa – mainly Peshawar
Reports indicate that Shia groups blame the government for either not doing enough to defeat the militant groups or actively supporting them. A March 2011 CTC Sentinel report dealing with the Haqqani Network’s presence in Kurram Agency states that ‘some allege’ that the group, which is allied to the Afghan Taliban, was able to find sanctuary in Kurram in 2007 with the ‘aid of the Pakistani security establishment.’[2] In a February 2012 article published in the Pakistan daily English-language newspaper The Daily Times, the author states that people in Parachinar believe that the ISI is actively supporting Sunni militants.[3] The author claims that this belief is born from the fact that militancy has increased since local Shia militias ceded responsibility for security to the government:
I will today confine myself to the recent deadly suicide bomb explosion in Parachinar that killed 43 Shia Pashtun. There is something strange about this explosion. As long as the security of Parachinar was in the hands of the local Shia volunteers, no terrorism happened in the city. Some three months back, the security was taken over by the FC and the Pakistan Army and this deadly suicide attack happened. Why is it that civilian volunteers could prevent acts of terrorism but the army and the FC could not? Is something wrong with the training of the security forces? No one in Parachinar believes so. The dominant perception is that the ISI has deliberately attacked the Shia-dominated city through Fazl Saeed, the Taliban commander considered to be operating under direct orders from the ISI.[4]
[2] Dressler, J 2011, ‘Haqqani Network Influence in Kurram and its Implications for Afghanistan’, CTC Sentinel, Vol. 4, Issue 3, Combating Terrorism Centre, US Military Academy, p.12 < <CIS 23410>
[3] Taj F 2012, ‘Pushing Kurram to invite Foreign Intervention’, The Daily Times, 25 February < <CIS 317242>
[4] Taj F 2012, ‘Pushing Kurram to invite Foreign Intervention’, The Daily Times, 25 February <>
Brian Fishman, a counterterrorism research fellow at the New America Foundation,[5] states in his contribution to the 2013 book Talibanistan that ‘the Pakistani government has done little to control the sectarian violence in Kurram, prompting many Shia to accuse it of intentionally stoking the violence’.[6]
[5] The New America Foundation is a US based public policy think tank which describes itself as ‘non-profit’ and ‘non-partisan’ <
[6] Fishman, B 2013, ‘The Taliban in Pakistan: An Overview’, Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.361-364

Despite military operations from 2011-2013 and the presence of military checkpoints, reports indicate that TTP militants remain active in Lower and Central Kurram. The situation is further complicated by the Islamic State’s announcement of a Khorasan Shura, encompassing both Afghanistan and Pakistan. IS named Hafiz Quran Daulat commander of its Kurram division, where, according to a leaked Balochistan government report, it has undertaken a ‘massive’ recruitment drive.[7]
[7] Roul, A 2015, ‘‘Wilayat Khurasan’: Islamic State Consolidates Position in AfPak Region’, Terrorism Monitor, Issue 13, 7 April < Accessed 5 May 2015 <CXBD6A0DE3994>; Roggio, B 2015, ‘Islamic State appoints leaders of 'Khorasan province,' issues veiled threat to Afghan Taliban’, The Long War Journal, 27 January
Recent media reports confirm that in February 2017 Daesh has threatened to target specific sects in the FATA and have distributed leaflets in the Pashto language in the border areas of Kurram Agency. The leaflets claimed that the followers of Daesh are to launch activities in the tribal areas. [8]
[8] "Timeline of Daesh in PAK", Geo TV, 03 March 2017, CISEDB50AD427
While much of the TTP’s activity in Kurram has involved attempts to secure safe corridors for moving people and weapons to various locations, including Afghanistan and Khyber Agency, a sectarian discourse is nonetheless present.[9] For example, when claiming responsibility for a July 2013 attack in Parachinar, which killed 57 people and injured 180, the TTP group Ansar-ul-Mujahideen declared that ‘the target was the Shia community. Shias are the enemies of Islam and we will continue to attack them in future’.[10]
[9] For the TTP’s interest in corridors to the Tirah Valley and Afghanistan see, for example: Munir, A 2012, ‘The Fight for Kurram’s Jogi Mountains’, The Express Tribune, 9 February < <CX0D38E8E20238>
[10] Parachinar Targeted by Taliban’ 2013, Newsweek, Source: Agence France Presse, 27 July < <CX319322>
The spokesman also suggested that his group was targeting the Shias because of sectarian related violence in other parts of the world, stating: ‘we have planned more similar attacks against the Shia community in Pakistan to seek revenge of the brutalities of Shia on Sunni Muslims in Syria and Iraq’.[11]
[11] Afzal, A and Shah, S Y 2013, ‘Twin suicide blasts kill 48 in Parachinar’, The News International, 27 July <
The South Asia Intelligence Review provides the following information regarding the rising threat of sectarian violence in Pakistan linked to Islamic State:
Islamic State has, indeed, made deep inroads in Karachi and across Pakistan. General John Campbell, the Commander of the Resolute Support Mission, the new US and NATO mission in Afghanistan, warned on January 18, 2015, that IS was recruiting in Afghanistan and Pakistan: "We are seeing reports of some recruiting. There have been some night letter drops, there have been reports of people trying to recruit both in Afghanistan and Pakistan...” Exploiting old faultlines of Shia-Sunni rivalry and the anti-Shia sentiment in Pakistan that has been legitimized by statebacked orthodox Sunni ulama and their religious organisations virtually since the creation of Pakistan, the IS has easily found sympathizers, supporters, and fighters in its ‘global war’ against Shias.
Meanwhile, sectarian attacks in Pakistan continue unabated. According to partial data compiled by South Asia Terrorism Portal (SATP), the country has recorded at least 2,988 sectarian attacks, resulting in 5,119 deaths and 9,745 persons injured, since 1989. 2015 has already recorded 27 such incidents, with 199 fatalities and 242 persons injured (all data till May 17, 2015).
Out of 4,116 persons killed in such attacks since 2001, 2,461 were identified as Shias. Among them, at least 72 Ismailis (including, Bohra Ismailis, who are a sub-sect of the Ismaili Shias) have been killed in 15 such attacks since 2012.[12]
[12] South Asia Intelligence Review: Weekly Assessments & Briefings Volume 13, No. 46, May 18, 2015 (CISEC96CF1881)
The above information is further supported by reports that Islamic State of Iraq and Syria has created a “strategic planning wing” on how to wage war against the Pakistan military and is trying to join forces with local militants. Specifically, it is reported that ISIS aim is to stir up sectarian unrest by dispatching the local militant group Lashkar-e-Jhangvi on offensives against Pakistan’s minority Shia Muslim community. It is reported that ISIS claims to have recruited 10,000 to 12,000 followers in tribal areas on the Afghan border.[13]
[13] >
The rise of sectarian violence in Pakistan is evidenced by the February 2017 terrorist attacks on the Lal Shahbabaz Qalandar shrine in Sehwan which killed at least 88 people.[14]
[14] >
The Tribunal finds that terrorist attacks continue to be directed towards the Shia community in Kurram Agency. Recent media reports confirm that a bomb blast killed 22 people and wounded 90 others in a predominantly Shia area of Parachinar, in January 2017. LeJ claimed responsibility for the attack. [15]On 31 March 2017 the Pakistan Taliban claimed responsibility for a bombing near a Shia mosque in the city of Parachinar which killed at least 22 people and 70 wounded.[16]
[15] Deadly blast rocks market in Pakistan’s northwest; Al Jazeera 21 January 2017, Pakistan Taliban claims bombing of mosque, 2017 AAP, 31 March >
The issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings and the country information detailed above.
The applicant claims to be a citizen of Pakistan and provided a copy of his Pakistan passport and National Identity Card (NIDC aka CNIC) in support of his identity. The Tribunal accepts that the applicant is a citizen of Pakistan. The Tribunal has assessed the applicant’s claims against Pakistan as his country of nationality and receiving country for the purpose to the complementary protection criteria.
The Tribunal is satisfied on the evidence before it, that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s36(3).
The Tribunal accepts the applicant was born in [Town 1] in Parachinar, in Kurram Agency, FATA and lived there until 2007 when he left Pakistan and went to [Country 1] for work purposes. The Tribunal accepts the applicant is a Shia Muslim of Pashtun ethnicity and a member of the Bangash tribe.
The Tribunal has considered whether the applicant could return to his home area of Parachinar, Upper Kurram Agency in the province of the FATA, Pakistan.
The Tribunal finds that the security situation in Pakistan has deteriorated since the first Tribunal’s decision. In particular the Tribunal finds that the violent terrorist attacks by extremist groups against Shia targets have increased in the applicant’s home area.
The first Tribunal did not accept the applicant’s evidence that he received any letters from the leaders of either the Bangash or Turi groups wanting him to join them in fighting against the Taliban. The first Tribunal noted that the applicant had not mentioned anything about the letters prior to the hearing, particularly in his statutory declaration outlining his claims for protection. The Tribunal raised these concerns with the applicant at the hearing.
The applicant claims he did not previously raise at first hearing that he had received letters from the Anjuman Hssainia Parachinar because his family had concealed the letters from him until his merits review hearing. His family concealed the letters because they did not want to add to his stress at the time he was in Pakistan. The applicant provided a translated copy of one of the letters in support of his claims. The Tribunal has some concerns about this aspect of the applicant’s evidence and has given it limited weight is assessing the applicant’s claims.
The Tribunal finds however that the applicant’s religion and tribal identity is relevant and central to his claims. In particular the Tribunal has had regard to the country information and finds that violence against Shias in FATA, has strategic, tribal and sectarian dimensions. The Tribunal finds that Shias in FATA particularly in Kurram (Parachinar), face a real risk of persecution due to their Shia religious beliefs. The Tribunal finds that Bangash Pashtun Shias, by virtue of their geographic concentration in upper Kurram, are more easily targeted in sectarian violence than other Shias in the region.
The Tribunal finds that if the applicant were to return to his home area in the reasonably foreseeable future there is a real chance he would be subjected to serious harm amounting to persecution on account of his Bangash Pashtun ethnicity (race), his Shia Muslim religion and his imputed anti-Taliban political opinion. The Tribunal therefore finds the applicant’s fear of persecution is well-founded.
The persecution feared by the applicant emanates from non-state insurgency groups opposed to the Pakistan government (notably, the LeJ, TTP and Daesh). Country information confirms that state protection from the Pakistan government in the applicant’s home area remains weak, unpredictable and vulnerable to significant corruption.
According to the UNHCR Guidelines[17], law enforcement authorities are reportedly unable or unwilling to protect members of religious minorities, including Shias. Sunni militant groups, such as the banned Lashkar-e Jhangvi, reportedly operated with impunity, including in areas where State authority is well established, such as Punjab province and Karachi. In light of the foregoing, UNHCR considers that members of the Shia community, particularly those in areas where Taliban-affiliated groups are active, such as the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion and/or (imputed) political opinion.
[17] United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International protections needs of members of religious minorities from Pakistan, 14 May 2012 (UNHCR Guidelines)
The US Department of State also reports that the Pakistan police often failed to protect members of religious minorities, including Shias, although there have been improvements.[18] 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.[19]
[18] US Department of State, Pakistan – Country Reports on Human Rights Practices 2015 (13 April 2016) section 1(d).
[19] USCIRF Annual Report 2015- Pakistan, 30 April 2015, p.2.
The Tribunal also notes following comments made in 2017 by UN Committee Against Torture which expressed concerns over the Pakistani governments response to the sectarian attacks on religious minorities:
The Committee is concerned about reports of violence against and inadequate efforts by the State party’s authorities to protect vulnerable individuals, particularly members of Shi’a, Christian, and Ahmadiyya communities and individuals accused of blasphemy, from violence by non-State actors. In this regard, the Committee is particularly concerned about the conduct of the State party’s authorities in the recent case of Mashal Khan, who was killed by a mob after being accused of blasphemy. The Committee is also concerned by reports that the State party’s authorities have sometimes refrained from promptly investigating and prosecuting activities including abduction for ransom by groups including the Haqqani Network and Lashkar-e-Tayyaba.[20]
[20] UN Committee against Torture, “Concluding observations on the initial report on Pakistan” (paragraph 36) 1 June 2017 >
The Tribunal concludes the applicant will not be able to access effective protection, and a real chance of serious harm remains should the applicant return to his home province.
In view of the unstable security situation in the applicant’s home area the Tribunal finds the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds, based on the country information, that the applicant as a Shia Muslim would not be able to avail himself of effective state protection against such harm.
Relocation
The persecution feared by the applicant described above is associated with the applicant returning to live in Kurram Agency, FATA. The Tribunal must also consider whether the persecution faced by the applicant is localised and whether he could relocate to another part of Pakistan. The delegate notes that urban centres such as Islamabad and Rawalpindi have been suggested in the country information as other areas in which people from the applicant’s home region have been able to relocate to.
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.
Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.
It was submitted that the threats to the applicant are exacerbated by the fact that he can be easily identified as a Shia Muslim by Sunni extremists in other regions of Pakistan. It was submitted that the applicant has continued to practice his religion in Australia and it follows that he would continue this observance if he were to return to Pakistan. It was submitted that given the status of Shias as a Pakistan religious minority outside Kurram Agency and Quetta, he will become exposed and identified as a Shia when attending religious sites, shrines or observing Shia specific holidays such as Muharram. The Tribunal accepts that the applicant’s religious practice and identity poses a real risk to him being able to relocate.
The Tribunal further finds that this risk is further exacerbated because the applicant belongs to the Bangash Tribe. For example, DFAT observes that Shias are often identifiable by common Shia names. Similarly, ethnic and tribal names can reveal a person’s tribal or sectarian affiliation such as Bangash or Turi, as can their address if they are from a predominantly Shia area. The Tribunal accepts that the applicant’s home address would become known when he would be required to present his CNIC at military check points in order to freely travel in Pakistan.
Some sources have told DFAT that Bangash Shias may also be physically distinguishable from other Pashtuns. The same sources indicate that Bangash and Turi accents are easy to distinguish from other Pashtun groups.
DFAT report that Sunni and Shia mosques in Pakistan are clearly distinguishable: these mosques usually have visibly different exteriors and are identifiable by name. Shia mosques also feature different Muslim iconography, including the Shia sword, horses, images of Ali and Hussain, and ‘U-shaped’ crescent moons. Shia and Sunni mosques also have different prayer times, and worshippers use different hand positions while praying. Shias are most prominent during Shia religious festivals and pilgrimages to Iran. Shias participating in ‘Ashura’ processions during Muharram often administer forms of self-harm such as flagellation, which can leave permanent marks.
The Tribunal accepts that the applicant’s religious observance and worship, physical appearance, name and accent increase the risk of the applicant being identified and singled out as a Shia, Bangash outsider from Parachinar, FATA.
It was also submitted that in considering whether it would be safe for the applicant to relocate to another area of Pakistan, consideration must be given to whether relocation is accessible in a reasonable and practical sense, in light of the applicant’s personal circumstances. It was submitted that the applicant’s CNIC expires in [2018] and in order to renew the card the applicant would be required to return to his home area where he faces a real chance of serious harm.
The Tribunal has had regard to the English translation of the applicant’s CNIC which indicates that it expires [in] 2018. The Tribunal considers this to be in the reasonably foreseeable future.
In support the submissions the applicant’s representative referred the Tribunal to the findings of the AAT in decision 1512208 (Refugee) [2016] AATA 3242 (2 February 2016). This matter relates to the importance of the CNCI in the context of the applicant’s ability successfully relocate within Pakistan to avoid persecution in his home area. The Tribunal respectfully adopts these findings, for the reasons set out therein.
Is was submitted by the applicant’s representative that the Tribunal also referred to information from 14 April 2015 and 15 January 2016 DFAT reports stating DFAT was aware of anecdotal reports that recent Pashtun migrants to Lahore have had difficulty obtaining CNIC. The Tribunal also accepted that the official website of the National Database and Registration Authority, being the authority responsible for CNIC’s, states in relation to the CNIC application process that Residents of FATA/PATA will only be entertained at their native DAUs [Data Acquisition Units] and their forms will be attested by concerned PA/APA [Political Agent/Assistant Political Agent]. The information from the NDCR is supported by the 15 January 2016 DFAT report which states at [5.31]:
‘…Applications by residents of FATA, parts of Khyber Pakhtunkhwa and Balochistan must be countersigned by Political Agents and Assistant Political Agents. DFAT understands that to obtain a CNIC, applicants must return to their place of origin and register with the local administrative council.’
The Tribunal also referred to NDRC website’s instructions for online renewal of a CNIC, noting that the person applying would still need to upload attester details, which requires the signature of a Political Agent or Assistant Political Agent in FATA.
The Tribunal agreed that no matter where the Applicant relocated to, the above country information meant that the Applicant would be required to return to Parachinar to apply for a new NIDC. However, the Applicant could not return to his home area due to the real chance/serious risk of harm. The Tribunal agreed that it would be unreasonable for the Applicant to reside outside his home area in Pakistan without a valid NIDC because the NIDC is mandatory for, inter alia, voting, opening and operating bank accounts, obtaining a passport, purchasing vehicles and land, obtaining a driver licence, purchasing a plane or train ticket, obtaining a mobile phone SIM card, obtaining electricity, gas, and water, securing admission to college and other postgraduate institutes, and conducting major financial transactions.

Given the requirement for a CNIC to be attested by an authorised officer, the evidence before the Tribunal in relation to the attestation requirements for FATA residents suggests that a Political Agent or Assistant Political Agent would be required to attest to the applicant’s renewal application. Although not completely clear, it does not appear that the applicant could avoid returning to FATA by lodging an online renewal application as he would still be required to obtain the relevant attestation.
Based on the DFAT report and the other country information referred to in the representative’s submissions, the Tribunal finds that the applicant would have to return to Parachinar in the FATA to obtain a new CNIC. As set out above, the Tribunal has found that it is not safe for the applicant to return to [his] home region in the reasonably foreseeable future. It follows that the Tribunal finds that the applicant would not be able to renew his CNIC card when it expires in [2018].
The Tribunal accepts that taken cumulatively with the issues discussed below it would be unreasonable for the applicant to reside outside his home area in Pakistan without a valid CNIC to enable him to access basic services and travel within Pakistan.
The UNHCR reports that the following personal circumstances of an individual should be given due weight in assessing whether it would be unduly harsh and therefore unreasonable for a person to relocate:
Of relevance in making this assessment are factors such as age, sex, health, disability, family situation and relationships, social or other vulnerabilities, ethnic, cultural or religious considerations, political and social links and compatibility, language abilities, educational, professional and work background and opportunities, and any past persecution and its psychological effects. In particular, lack of ethnic or other cultural ties may result in isolation of the individual and even discrimination in communities where close ties of this kind are a dominant feature of daily life. Factors which may not on their own preclude relocation may do so when their cumulative effect is taken into account. Depending on individual circumstances, those factors capable of ensuring the material and psychological well-being of the person, such as the presence of family members or other close social linksin the proposed area, may be more important than others.[21]
[21] UNHCR Guidelines on International Protection: “Internal Flight or Relocation Alternatives” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees; 23 July 2003
It was submitted that as a person with a rural background and lack of economic opportunity within Pakistan, he will be unable to afford the costs of living in a new major urban region (particularly the high cost of accommodation for a home in a major urban centre such as Islamabad according to current DFAT COI). This will impact upon both his and his family’s ability to subsist as they are reliant on the money he sends them from Australia.
At the hearing the applicant said that he did not have any friends or relatives outside his home area. He has not previously travelled outside his home area in Pakistan. He does not have existing networks upon which he can rely to integrate and subsist in a new region. He has responsibilities to care for his wife [and] children and also his mother in Pakistan.
The Tribunals also finds that the applicant’s mental health is relevant to his ability to relocate in Pakistan. It was submitted that the applicant fears he will not be able to access support for his mental health issues in Pakistan. In support of this claim the Tribunal was provided with a letter from [a] psychologist [from an organisation] dated [July] 2017. The letter confirms that the applicant was referred for treatment in September 2015 with acute stress, symptomatic lack of sleep, no appetite, bad dreams, flash backs and anxiety.
After the hearing the Tribunal was provided with further evidence regarding the applicant’s mental health. In particular the Tribunal notes correspondence from the applicant’s treating [General Practitioner] confirming that the applicant suffers from anxiety and depression and has been under treatment for these conditions since 2015. [The doctor] confirms that the applicant is under regular psychological counselling and antidepressant medication.
The Tribunal was also provided with an updated report by [the psychologist]. [The psychologist] confirms that she has seen the applicant for 16 counselling sessions from September 2015 to July 2017. [The psychologist] concludes that in her opinion should the applicant be repatriated it would exacerbate his psychological distress and cause rapid deterioration of his mental state.
The Tribunal has also had regard to the following case law and country information relating the access of mental health treatment in Pakistan.
In MZYLH v Minister for Immigration & Anor [2011] FMCA 888 (17 November 2011), the court dealt with a case where there was evidence that the applicant was a person who was suffering from depression and post-traumatic stress disorder. The court said at [137]-[138]:
The Tribunal is required to consider the practical realities facing a person in determining whether it is reasonable to expect them to relocate. Those practical realities are not limited to matters related to persecution for a Convention reason:
A well founded fear of persecution for a Convention reason having been shown, a refugee does not also have to show a Convention reason behind every difficulty or danger which makes some suggestion of relocation unreasonable.
The issue is not whether the Applicant might be denied treatment for his mental illness for a Convention reason but whether he could relocate within Pakistan and maintain himself given the state of his health. As Branson J said in NAIZ, the approach set down in Randhawa requires the Tribunal to consider the practical realities facing the Applicant to consider how, in a practical sense, he could reasonably be expected to relocate.
With respect to the mental health services in Pakistan, Aljazeera recently reported with respect to Pakistan’s Mental health system notes:
Pakistan has one of the lowest mental illness patient-to-doctor ratios in the world. In a seminar held earlier this year in Karachi, a prominent Pakistani doctor revealed that Pakistan has only 380 trained psychiatrists — meaning that there is roughly one psychiatrist available per half-million people. The result is that even when patients fighting something as common as depression or anxiety recognize their symptoms, overcome the stigma, gain the support of their families and start looking for medical help, there simply isn’t much help to be had.[22]
[22]
The WHO reported in the 2011 Mental Health Atlas:
The majority of primary health care doctors and nurses have not received official in-service training on mental health within the last five years. Officially approved manuals on the management and treatment of mental disorders are not available in the majority of primary health care clinics. Official referral procedures for referring persons from primary care to secondary/tertiary care exist. However, referral procedures from tertiary/secondary to primary care do not exist.[23]
[23]
More recently it was reported by DAWN on 6 April 2017:
In today’s Pakistan, scores of people seem to be leading perfectly normal, happy lives. Scratch the surface, however, and what lurks beneath for many is a host of psychological issues they’re battling with on a daily basis. Unfortunately, there is a deep-seated stigma attached to mental disorders in Pakistan. It is not uncommon for the word ‘psychology’ to be associated with madness; it is, therefore, a taboo subject in many households. Irrespective of what socioeconomic rung one hails from, it is typical for a person to remain quiet about their mental illness for fear of being ostracised.[24]
[24]
In conclusion, having regard to the applicant’s personal circumstances, the growing presence of extremist groups throughout Pakistan and the applicant’s psychological health, the Tribunal finds that it is not reasonable for the applicant to relocate to any other part of Pakistan to avoid his risk of Convention based persecution.
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.
Christopher Smolicz
Member

<CX318841>

[2017] AATA 1446

11 August 2017

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice