1715202 (Refugee)

[2021] AATA 837

1715202 (Refugee) [2021] AATA 837 (26 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1715202

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:26 March 2021

PLACE OF DECISION:  Melbourne

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 26 March 2021 at 7:38am

CATCHWORDS

REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Taliban – religion – Shia – race – Turi tribe – particular social group – HIV/AIDS sufferer – killing of the family members – bombings – sectarian violence – perceived as homosexual – internal relocation – access to HIV/AIDS treatment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES

SZATV v MIAC (2007) 233 CLR 18
SZSRQ v MIBP [2014] FCCA 2205

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant claims to be a citizen of Pakistan. In support of this claim the applicant had provided a copy of his passport. I accept that the applicant is a citizen of Pakistan and as such Pakistan is the country of reference and receiving country for the purposes of this decision.  

3. The applicant applied for the visa on 26 November 2014 and the delegate refused to grant the visa on 27 June 2017.

4. The applicant appeared before the Tribunal on 3 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted in English with an interpreter in the Urdu (Pakistan) language on hand for assistance as required.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. 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).

8. 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.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Mandatory considerations

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

18. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Evidence and findings of fact

    Environment to which the applicant would return to

19. The applicant was born in Kurram Agency, Khyber Paktunkhwa, Pakistan. Following the merger of the Federally Administered Tribal Areas with Khyber Pakhtunkhwa Kurram Agency became Kurram District. He is of the Shia faith and Turi tribe. He explained that the Turi tribe were known to have stood up against the Taliban. The applicant’s forebears have held the position of Malik in his village, [Village 1], since the time of the British rule in the area. This position was described by the applicant as a ‘local councillor’ with the power to represent the community at Lower Kurram meetings of Maliks, adjudicate disputes and represent state authority including making arrests. Currently, it is his father and uncle who jointly hold the role.

20. The applicant claims that the area he is from is Sunni dominated with small areas of Shia tribes. The main Shia area in Kurram Distric is Parachinar, a town approximately [distance from Village 1]. The applicant claims that [in that region], there are no Shia villages other than [Village 1]. 

21. The applicant described the geography of [Village 1]. He said that the village is mixed both Sunni and Shia. He said that there are [approximate number] Shia families in his area of [Village 1] but [about 4 times as many] Sunni families in the other areas in and around [Village 1]. This description aligns with country information on [Village 1] which states that it is majority Sunni.[1] 

    [1] [Source deleted.]

22. The applicant described how in 2006 previously intermittent tensions and localised conflict between the Shia and Sunni communities transformed into widespread fighting. He claims that his father and uncle began to receive death threats, had their business extorted, their village attacked and pressed to support the Taliban by arms, providing safe passage and converting. The applicant described a situation in 2008 in which a bomb was planted near a school which was close to his home. He claimed that his cousin, [named], was killed and his uncle was left permanently blind. The applicant said that the Taliban claimed responsibility for the attack and blamed them for not accepting their demands. He submitted the written letter from the Taliban that claimed responsibility. He claimed that the bomb was planted intentionally to injure one of their family members as his cousin [worked for] for the school and would regularly walk around the school as well as for the reason that the school [was located near] the applicant’s house. The claim of schools suffering bomb attacks aligns with country information which states that 550 schools had been attacked in the Federally Administered Tribal Areas between 2004 and 2017.[2]

    [2] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [2.33]

23. He claimed that the Taliban would find Shia travellers and behead them, leaving the remains around their village as a threat to them.

24. The applicant claimed that in 2011 another of his cousins was killed on the road from [Village 1] to [another village]. He claimed that it was a targeted killing as his family members are known to those who support the Taliban.

25. The applicant described this road as being [location described]. Despite villages having arterial roads emanating from the main road none join together to provide an alternative route. The applicant described the strategic importance of their village as being that it lies on the only road between Afghanistan and Pakistan in that area. It is a road that was used for resupplying international forces in Afghanistan. It is [an important] road by which the Shia residents of Parachinar can access the rest of Pakistan. He explained how insurgent groups attempted to take control of the road by forcing those who did not support them to flee to the safety of larger urban areas such as Parachinar and Peshawar. I questioned how it could be that the Taliban placed such importance on [Village 1] yet they could not overcome the defences of the 10-15 families present. He responded that Turi authorities in Parachinar deployed armed militia to their village during these tumultuous earlier years and continue to do so now but in lower numbers of 4-5 men. He described how these militia comprising at its peak 60 men would be deployed for 6-8 months to his village. He described them as living in the village and patrolling the area on a constant basis. Country information from 2012 described the road between Tal and Parachinar [detail deleted], as being under a ‘Sunni blockage’[3]

    [3] Jamestown Foundation, The Looming Storm in Pakistan's Kurram Agency, 8 March 2012, Terrorism Monitor Volume: 10 Issue: 5,  

26. The applicant’s family relocated the women and children from their village to Parachinar to protect them during this period of widespread violence and intimidation. The men, he explained, could not leave the village for reasons of ‘pride and tradition’ which he described as being more important than life itself.

27. The applicant said that his family has severely restricted movements including that they are limited in their ability to work in the fields. He described that in addition to insurgent risks his family have tribal disputes over land ownership in the area which has escalated into conflict. The applicant described that Sunni tribesman now control the irrigation to their land.

28. Country information on Kurram District and the sectarian division includes:

    According to official figures, its total population is 500,000, with 58 percent Sunni and 42 percent Shiite… Sectarian violence is not a new phenomenon in Kurram Agency where well over 4000 people have been killed in clashes between the Sunni and Shia tribes since the decade of 1980s.[4]

    Kurram Agency: Comparatively more accessible than other agencies, it has a population of about 450,000 and is home to two tribes—Turi and Bangash. A land of gardens and orchards, this agency has often been called pro-Northern Alliance because the Bangash tribe predominantly belongs to the Shiite sect of Islam, which is anti-Taliban in its orientation. Turi tribe (Turkic origin), known for its strong and hardy horsemen, also belongs to the Shiite sect and has been at loggerheads with pro-Taliban, Deobandi elements in the neighboring area. Some non-Shiite extremists in the area, however, were supportive of the Taliban, although with little effectiveness.[5]

    [4] Protection Cluster, ‘Protection cluster mission to Kurram, 22-26 April 2014

    [5] Hassan Abbas, ‘Profiles of Pakistan’s Seven Tribal Agencies’, 19 October 2006

29. The applicant provided additional supporting documentation including, relevant to this decision the following:

    a.Letter from [an official] of the Ajuman-e-Hussainia in [a location] stating that their body is the leading body representing the Shia population in Kurram Agency. The letter confirms the identity of the applicant and describes the situation of [Village 1] as being one of years of targeting by Sunni militants and their supporters. It states that the applicant’s father and his family have led the resistance against the attacks and have suffered for doing so. It states that the Anjuman-e-Hussainia has sent forces to safeguard the Shia in [Village 1] since 2007.

    b.A statutory declaration by a Turi living in Australia stating that his brother was killed while serving in the Frontier Corp by his fellow soldiers and that this killing, like others, goes unreported.

    c.A compilation of local reporting from Kurram District sourced from [social media] that provides details along with pictures of attacks and killings over the past two years. The representative claimed in the submission that these deaths were not reported in national and international press. I give this claim little weight for the reason that this Tribunal has compiled analysis and reviewed databases from a wide array of sources including from Pakistan. The hosts of these databases can equally access [social media] and considering the size of the following of this page it would be implausible that those analysts would not be aware of it. It could be that the reports are not genuine or more likely that upon investigation or on the face of the reports the nature of deaths did not meet the criteria of some of the databases such as being associated with terrorism.

    HIV Diagnosis

30. The applicant has been diagnosed with HIV in 2019. He described his feeling of no longer being a part of the community and that he could no longer be a Muslim or a part of his family. The applicant claimed that HIV is strongly associated with homosexuality in Pakistan. He believes that his family and community would see him as being homosexual.

31. The applicant is currently being treated at [Hospital 1]. He claims that the treatment he receives in Australia is not available in Pakistan.

32. The applicant’s treating doctor, [named], [from Hospital 1], wrote in a submission:

    [The applicant] has asymptomatic well controlled HIV infection with normal immune function. It is anticipated he will have a normal life expectancy if he remains on antiretroviral treatment. After the first year of treatment where he was reviewed every 3 months, he will require ongoing management with antiretroviral medication and medical review every 6 months for monitoring of T cells, HIV viral load, kidney and liver function. Antiretroviral treatment is not easy to access in Pakistan, where less than 15% of people with HIV are receiving antiretroviral therapy. Biktarvy is not available in Pakistan.

33. In another submission by [a named doctor], also of [Hospital 1], the following opinion was conveyed:

    I have significant concerns regarding [the applicant’s] mental health.

    a. Adjustment to HIV diagnosis, significant anxiety

    i. This was the reason for [the applicant’s] admission to hospital in May 2019 at the time of diagnosis, he was not physically unwell.

    ii. However his anxiety manifests in many somatic complaints, as well as difficult sleeping, weight loss, and ruminating thoughts

    iii. He is very worried about possibly needing to return to Pakistan; his ability to access medical care there safely and the impact this will have on his family

    iv. Our HIV psychiatry and social work teams have been helping support [the applicant]

    b. History of trauma

    iii. We have referred to Foundation House for specific trauma-related counselling

    We have significant concerns regarding the impact on [the applicant’s] health should he be required to return to Pakistan.

    a. He requires lifelong daily medication for his HIV, with guaranteed supply

    b. Moreover, his mental health is likely to be adversely impacted should he be required to return to Pakistan, where he fears persecution as a result of his HIV status, and the impact this may have on his family

34. The applicant also provided extensive evidence in support of his other claims which are listed below. I have not detailed this evidence for the reason that what has been detailed in this decision provides sufficient grounds for the criteria in s.36(2)(a) to be met.

35. I found the applicant to be credible based upon the country information he provided aligning with independent sources as well as the detail and responsiveness to secondary questioning. As such I accept the evidence listed above as fact.

    CONSIDERATIONS

36. The applicant fears harm arising from a number of reasons including being Shia and Turi, the circumstances in his home area of Kurram Agency, that his family have staunchly stood up against the Taliban and are known as pro-West and pro-government, that he has lived in a Western country and would be associated with the West, that he has been diagnosed with HIV, that this will lead to a perception that he is homosexual, that he has worked for a health organisation which the Taliban are against, and that he is secular/liberal.

1. I have not considered each separately for the reason that two alone lead to the finding that the applicant faces a real chance of serious harm in the reasonably foreseeable future. These two are the risks associated with returning to Kurram District and his HIV status.

2. The circumstances for the applicant returning to Kurram District raise some risks. In 2017 it is reported that, ‘at least 67 persons were killed and more than 200 injured in back-to-back explosions in the Turi Bazaar area of Parachinar, the headquarter of Kurram Agency, in the Federally Administered Tribal Areas (FATA), when the market was crowed for Iftar and Eid shopping.’[6] Lashkar-i-Jhangvi (LeJ) claimed responsibility. The justification according to a statement issued by the group was that it was ‘targeting Shias’ because of ‘Pakistanis fighting against Sunni militants in Syria’s civil war.[7] This was the third major attack in Parachinar during the first half of 2017 alone.[8]

   [6] Tushar Ranjan Mohanty, Kurram Agency: Sectarian Monster Revisited, South Asia Intelligence Review, Vol 15, No. 52, SATP ibid

   [8] ibid

According to a 2019 DFAT report there is:

a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith.[9]

[9] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [3.26]

Since the publication date of the DFAT report sectarian attacks in Kurram District have continued. CRSS notes, ‘The security situation continued to worsen in most districts of ex-FATA - with North Waziristan, Bajaur, and South Waziristan once again appearing to be the highest security risk areas in the country. Violence-related fatalities grew in numbers throughout the ex-FATA region.’ The report lists Kurram District as having had 8 fatalities and 19 injuries from terrorist attacks and counter-terror actions in 2020.[10]

[10] Centre for Research and Security Studies, ‘Annual Security Report 2020’,

Similarly, the FATA Research Centre Annual Security Report 2020 notes:

after witnessing a nose dive in militancy incidents during the past few years, a remarkable surge in militancy and resultant casualties was observed in four out of the seven newly merged districts of KPTDs, According to the report, a total of 169 violent incidents (137 terrorism and 32 counter-terrorism) incidents were recorded during the year 2020 compared to 160 (106 terrorism and 54 counter-terrorism) incidents in the preceding year. This shows an increase of 29 percent in terrorism related incidents in the year 2020 as compared to the previous year.[11]

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

The 2019 DFAT report notes that Pakistan military operations in North Waziristan have pushed the Haqqani Network to relocate to Kurram Agency. It suggests that Turis living in small geographic areas as being ‘vulnerable to attack’.[12]

[12] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [3.226]

Separate to terrorism related deaths there was a conflict in Kurram District in 2020 over land ownership between two tribes. The road between Tal and Parachinar was closed due to the fighting which led to ten deaths.[13]

[13] Dawn, ‘Five more killed as clashes in Kurram continue’, 1 July 2020,

The DFAT report identifies Turis of Kurram as facing a moderate risk (which DFAT defines as a pattern of behaviour) of sectarian violence. The raw statistics detailed above show that while over a short period of time there was a downward trend of incidents and deaths but I do not conclude that this limited period is sufficient to base a decision that extends into the reasonably foreseeable future especially noting the strategic importance of the area, the imminent withdrawal of US troops in Afghanistan and the reported relocation of extremist groups such as the Haqqani Network into Kurram. In addition, country information backed by the applicant’s own evidence shows additional risk of arising from historical tensions over land disputes leads to the applicant facing some risk upon return. In addition, the applicant’s family and his place of return is a garrisoned village. It is a small community that requires constant militia protection. That it requires such protection is indicative of the situation to which the applicant would be returning to. For this reason, I find that when considering the evidence as a whole the applicant faces a real chance of serious harm into the reasonably foreseeable future upon the basis of returning to [Village 1 in] Lower Kurram.

The harm the applicant faces, first and foremost, arises from being a Shia Turi resident of a garrisoned village on the road from Tal to Parachinar and associated with a family that is known for their leadership against the Taliban and/or other insurgent groups. As such the harm is for reasons of his religion and imputed political opinion. The religious element arises from sectarian violence involving Sunni insurgents targeting Shia such as those described by the applicant as occurring in Peshawar where his uncle was injured as well as for example, the bomb blast in the Parachinar market, noted above, which was justified by LeJ on sectarian grounds. The harm is also for reasons of an imputed political opinion arising from his family’s local leadership in persisting to protect their village from those who seek to control the strategic supply route to Afghanistan and use it against the internationally backed government in Kabul. As such religion and political opinion are the essential and significant reasons for the harm.

I find that while the Pakistani authorities have designated the security situation in Karrum District as important including deploying armed forces in various operations in recent years not only to Kurram but FATA more broadly including Operation Zarb-e-Azb beginning in 2014, the National Action Plan and subsequently Operation Radd-ul-Fasaad,[14] the state security agencies have been unable to quell insurgent activities and provide security such that the risk the applicant faces would amount to less than a real chance of serious harm. This is evidenced by the ongoing violence in the area and the need for a continued deployment of the Turi militia to [Village 1].

Relocation

[14] Dawn, ‘Pakistan Army launches 'Operation Radd-ul-Fasaad' across the country’ 22 February 2017 and Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [2.75] – [2.79]

As the persecution the applicant faces is localised, I now turn my mind to consider whether it is reasonable to expect the applicant to seek refuge in another part of the same country as per s.36(2B). This question requires two enquiries, firstly, whether ‘there is a different region in the country where, objectively, there is no appreciable risk of the occurrence of the feared persecution; and if so, whether it is reasonable, in the sense of practicable, to expect the applicant to be sent to that other region.’ (SZSRQ v MIBP [2014] FCCA 2205 at [45]).

DFAT reports that Turis relocating in Pakistan go to Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi. The information available on the situation for a person of the applicant’s profile suggests with regards to non-state harm that there are locations where he would not face a real chance of serious harm. This view is based upon the following.

No specific information was found that would indicate Turi’s are being targeted once they move to other parts of Pakistan.[15] While the absence of information is not necessarily indicative of an absence of incidents, the amount of international reporting, analysis and asylum specific reports available on Pakistan is such that I am satisfied that the absence of information does indicate the absence of incidents. In addition, DFAT reports that ‘Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.’[16] In response to the risk that Shia groups face, the UK Home Office has found that:

In general, a Shia Muslim is not likely to face a real risk of persecution and/or serious harm from non-state actors, though the risk may vary depending on location. Although there continued to be targeted attacks in Shia dominated areas, these are infrequent and do not generally amount to substantial grounds for considering there is a real risk of persecution and/or serious harm.[17]

As such I find that the applicant would not face a real chance of serious harm arising from society or non-state actor’s was he to relocate.

[15] In addition to a review of CISNET, Google and Refworld I note that the former RRT released a research note from January 2011 stating ‘No sources have been located that state that the Shi‘ite Pashtun Turis have been specifically targeted for harm outside of their home region of Kurram Agency.’ Pakistan – PAK37775 – Turis – Bangash – Syyed – Shi‘ite Pashtuns – Kurram Agency

[16] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [3.26]

[17] UK Home Office, ‘Country Policy and Information Note Pakistan: Shia Muslims’, [2.4.9]

I have also considered the situation the applicant may face from official persecution. Once again referring to the DFAT report on Pakistan it states that the applicant, as a Turi, faces a similar risk of official discrimination as other Pashtuns.[18] DFAT concludes that Pashtuns in majority Pashtun areas face a low risk of discrimination.[19] The applicant is also Shia. DFAT in this regard notes that it does not have evidence of official systematic discrimination against Shias.[20] As such I find that the applicant does not face a real chance of serious harm arising from official discrimination was he to relocate.

[18] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [3.24]

[19] Ibid [3.12]

[20] Ibid [3.96]

For these reasons, I find that the first limb of the relocation test is met and conclude that Karachi, with the largest population of Pashtuns, of which about a third are Shia would be a safe area to which the applicant could relocate.[21]

[21] Arif Hasan Masooma Mohib, ‘The case of Karachi, Pakistan’, >

The second limb is to enquire whether it would be reasonable for the applicant to relocate. What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation.[22] The applicant’s status as HIV positive is of particular relevance when considering relocation. DFAT notes that, ‘Only around a quarter of the HIV-positive people who have the active support of community groups have access to treatment, while those without support groups have almost no chance of receiving treatment.’[23] Another report in the prestigious medical journal, The Lancet, warns that nearly 90% of HIV positive Pakistanis are not receiving treatment.[24]

[22] SZATVv MIAC (2007) 233 CLR 18 at [24].

[23] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [2.26]

[24] Ali Ahmed, Furqan Khurshid Hasmi and Gul Majid Khan, ‘HIV Outbreaks in Pakistan,’ The Lancet available >

Without medical care the applicant would be physically compromised. When seeking shelter he would face discrimination. Pakistan’s attitudes towards people with HIV are detailed in the Pakistan Demographic and Health Survey 2017-2018:

Forty-six percent of women and 48% of men who have heard of AIDS do not think that children living with HIV should attend school with children who are HIV negative (Table 13.5). Fifty-three percent of women and 48% of men would not buy fresh vegetables from a shopkeeper who has HIV. Overall, similar percentages of women and men have discriminatory attitudes towards people with living with HIV according to the two indicators (60% and 61%, respectively).[25]

[25] National Institute of Population Studies, ‘Pakistan Demographic and Health Survey 2017-2018’

The Department of Foreign Affair’s information supports this view of wide spread discrimination such that they see it affecting efforts to provide treatment: ‘The ’taboo’ nature of same-sex activity results in a lack of investment in treatment options for HIV/AIDS in Pakistan.’[26]

[26] Department of Foreign Affairs, DFAT Country Information Report: Pakistan, 20 February 2019 [3.218]

Even was he able to overcome the discrimination he would be unable to maintain employment without ongoing treatment. His mental health, already a challenge despite the extensive support he has been receiving while in Australia would add further challenges.

While the applicant could potentially access support in moving to Karachi as there is a global Turi Shia network that supports them through donations[27] he would struggle to establish and sustain himself. He would face substantial challenges to accessing medical treatment. He would face severe discrimination. For these reasons I find that it is not reasonable for the applicant to relocate. 

[27] Ibid [3.20] – [3.21]

As such 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.

Denis Dragovic
Senior Member

– Kohat – Hangu – Safe havens – Internally Displaced Persons – Internal relocation 14 January 2011