1716280 (Refugee)

1716280 (Refugee) [2021] AATA 3243 (1 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1716280

COUNTRY OF REFERENCE: Pakistan
MEMBER:Paul Noonan
DATE:1 July 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a).
Statement made on 1 July 2021 at 09:41am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia – race – Turi tribe – imputed political opinion – opposition to Sunni terror groups – fear of Sunni extremist groups – mental health issues – employment – internal relocation – sectarian terror attacks – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 July 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 2 July 2015. The delegate refused to grant the visa on 14 July 2017.
The applicant appeared before the Tribunal on 29 April 2021 to give evidence and present arguments. The applicant is represented by his lawyer in this matter who attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.
The applicant claims protection from Australia on the basis that he fears he will be targeted as a Shia Muslim of the Turi tribe from Kurram Agency, Parachinar. The applicant is from a well-known family in Lower Kurram and fears he will be targeted and harmed wherever he lives in Pakistan. Members of his family have been targeted and killed by extremists in the past. The applicant fears he may be killed by the Taliban, LeJ or other Sunni extremist groups. The applicant claims he is unable to live safely in any part of Pakistan as he will be identified and harmed. The applicant claims that state protection is unavailable to him. While he has lived in Islamabad this has been under the armed protection of his [Relative A] and in a protected campus at University. He cannot rely upon the armed protection of his [Relative A] forever and fears harm for these reasons.
The applicant also claims protection from Australia as a returnee from a Western country as extremists see Western countries as infidels and he will be targeted for reason of his returning from the West. Prior to the Tribunal hearing the applicant also introduced claims that he will suffer persecution because he will face discrimination in finding employment and health care and because he suffers from mental health problems.
The Tribunal accepts that the applicant is a Turi Shia from [a named town in] Kurram Agency, Parachinar, Pakistan on the basis of his Pakistani original domicile certificate, his certified translated National Identity Card (NIC), his passport as supplied to the Department and also the delegate’s findings in respect to the applicant’s ethnic identity. The Tribunal accepts that Pakistan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
The delegate found that the applicant is a Turi Shia and that his [Relative A] is a retired [Official A] in his home area. The delegate did not accept as credible that the applicant was being watched by extremists or anyone else either in Pakistan or in Australia or that the applicant’s [Relative A] is a Malik. The delegate found the applicant’s evidence to be vague and lacking detail. The delegate found that the applicant has a well-founded fear of persecution in his home region on the basis that he is a family member of a previous [Official A]. However, the delegate found that the applicant can safely relocate to another area of Pakistan such as Lahore or Islamabad such that there is no real chance or real risk of serious or significant harm for him.
On 9 April 2021 the applicant’s representative provided pre-hearing submissions, including a detailed legal submission, a statement from the applicant, a statement from the applicant’s [Relative A], a statement from [Mr A] of [Agency 1], a report, dated 3 April 2021 from the applicant’s treating psychologist and relevant supporting documents, various newspaper reports reporting on unrest and violence in and around Parachinar.[1] The applicant’s representative also provided further country information submissions on 13 April 2021.
[1] See the Tribunal file.
The Tribunal notes that the applicant submitted a report from his treating registered psychologist, dated 3 April 2021. On the basis of clinical assessment, the applicant’s treating psychologist states that the applicant currently suffers from stress, anxiety and depression and his diagnosis is major depressive disorder. The report notes that these conditions are linked to his separation from his family. He receives counselling regularly for his mental health conditions.
The Tribunal is cognisant of the applicant’s mental health when considering the evidence he gave at the hearing and finds that he should be treated as a vulnerable person in accordance with relevant Tribunal guidelines. Breaks were taken at regular intervals during the hearing. In general, the Tribunal found the applicant was forthcoming and expansive in his evidence. The Tribunal is satisfied that the applicant’s ability to understand the Tribunal’s questions and to present his case was not impeded by his mental health issues.
The applicant gave evidence that he has not personally been harmed for reason of his ethnicity in the past. However, many of his relatives have been targeted and killed which the applicant is a reflection of his family’s high profile. The applicant highlighted several prominent members of his family including [name] (the applicant’s [Relative B]) who was the [Official B] for [an area], [name] (the applicant’s [Relative A]) who formerly held the office of [Official A] for [a region], [Mr A] (the applicant’s [specified relative]) is a member of [Agency 1], [name] who is a [prominent Shia] and [name] was [connected to Agency 1].
The applicant confirmed that his parents, wife and child all reside in Kurram Agency and have not suffered past harm. They live a risky life. They all take precautions against extremists. Since being in Australia he has travelled to [another country] to meet his wife.
The Tribunal notes that the applicant has provided a copy of his [Relative B’s] and [Relative A’s] pension books as well as written statements from his [Relative A] and his relative, [Mr A] on official [Agency 1] letterhead.
The applicant’s representative submitted that with respect to past harm two of the applicant’s [relatives] have been killed. One of them was a political figure who was killed when he was attending [an event] and the other one was a teacher in the local area:
• Another of the applicant’s [relatives] was killed during the war around 2007;
• One of the applicant’s [Relative Cs] was targeted and is now in Australia; his name is [name];
• In November 2008, the Taliban sent a threatening letter to the applicant’s family;
• The applicant’s family have been threatened by the Taliban on multiple occasions; and
• The applicant received a threatening phone call while living in Islamabad.
After the hearing the Tribunal sent the applicant a letter under s 424A of the Act as follows:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·You have submitted purported death certificates with respect to several relatives. As noted at hearing these all appear to have been issued over 2 days in 2013 concerning events between 5 and 12 years prior and were not issued at the time of the claimed deaths. Further, as noted at hearing, none of these certificates appear to have been issued by a central authority and lack any security features.
This information is relevant to the review because it is relevant to your claim that extended relatives have suffered harm in the past due to extremist actions. The information as presented may cause the Tribunal to consider that the death certificates are not authentic.
If we rely on this information in making our decision, we may consider that the death certificates should be given no weight and it may also cause the Tribunal to doubt the credibility of your claim that your relatives have suffered harm due to the actions of extremists in the past. If we rely on this information in making our decision, we may not accept that you have a well-founded fear of persecution if you return to Pakistan. This would be part the reason, or part of the reason, why the Tribunal would affirm the decision under review.
You are invited to give comments on or respond to the above information in writing.
In addition as outlined at the hearing you are invited to submit the following evidence for the Tribunal’s consideration:
·Certified translated copies of all NIC’s submitted to the Department including your parents and wife’s NIC’s.
·Certified copies of your academic records.
·Documentary evidence retained of your previous work roles undertaken in Pakistan.
·Evidence of your registration as an internally displaced person in Pakistan with the UNHCR.
On 29 April 2021 the applicant’s representative provided the following response:[2]
[2] See the Tribunal file.
·Legal submissions dated 29 April 2021;
·Statutory declaration signed by the applicant on 28 April 2021;
·Certified translation of NIC of applicant;
·Certified translation of NIC of applicant’s wife [named];
·Certified translation of NIC of applicant’s mother [named];
·Certified translation of NIC of applicant’s father [named];
·Certified translation of NIC of applicant’s sister [named];
·Certified translation of NADRA issued Death Certificate of [Mr B];
·Certified translation of NADRA issued Death Certificate of [Mr C];
·Certified translation of NADRA issued Death Certificate of [Mr D];
·Certified translation of NADRA issued Death Certificate of [Mr E];
·Certified translation of NADRA issued Death Certificate of [Mr A];
·UNHCR IDP Voluntary Return Form;
·Certified copy of [occupation] certificate of applicant;
·Certified copy of [Qualification 1] of applicant;
·Certified copy of [Qualification 2] of applicant;
·Certified copy of [Qualification 2] transcript of applicant;
·Certified copy of letter from [a Pakistani health service];
·Certified copy of Internship Certificate;
·Certified copy of letter from [an employer];
·Refugee review Tribunal decision of applicant’s [named Relative C], dated [in] March 2013.
The Tribunal accepts the evidence and submissions as reasonable that indicates that Death Certificates in Kurram Agency can be issued post death by hospitals and that generally in the past (prior to Kurram Agency becoming a district) they were only obtained for specific purposes and not ordinarily upon the death of a person.[3] The Tribunal is satisfied that it is possible that multiple Death Certificates could be issued and date stamped at that time in the past in the Federally Administered Tribal Areas (FATA). On balance the Tribunal accepts the applicant’s claim that some members of his extended family were killed by extremists in the past in Kurram Agency as claimed.
[3] See the Tribunal file.
The Tribunal also accepts, on the basis of the post-hearing evidence, that the applicant has studied [a specified subject]. The Tribunal also accepts that the applicant was previously registered as an internally displaced person in Pakistan with the UNHCR on the basis of his certification submitted to that effect.[4]
[4] See the Tribunal file.
In assessing the applicant’s claims the Tribunal has first considered whether he can return to his home area of [a named] Village, Lower Kurram Tehsil, Kurram Agency District, Parachinar. In making this assessment the Tribunal has relied on the most recent and authoritative country information available. The Tribunal has had regard to the most recent DFAT report. The DFAT report contains information that is directly relevant to the applicant.
The DFAT report states that:
Turis are not generally distinguishable from other Pashtuns by appearance, but are identifiable by tribal names, accents, and residency in known Turi areas. Most Turis live in Parachinar, lower and upper Kurram Agency, Orakzai, DI Khan, Kohat, and Hangu. Concentration of Turis in small geographic areas, particularly in and around Parachinar and Kurram Agency, renders Turi communities vulnerable to attack.
The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a— especially in Parachinar, rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan. Between 2008 and 2014, Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith (see Shi’a). Militants frequently stopped and killed Turis travelling on roads. A significant spike in profiling and targeted killings occurred between 2009 and 2014 along the Tall-Parachinar road, which links Kurram Agency and Peshawar.[5]
[5] DFAT Country Information Report – Pakistan, 20 February 2019 3.13 – 3.14
Successive security operations including Zarb-e-Azb, Radd-ul-Fasaad, and the National Action Plan have been credited with a reduction in sectarian attacks across Pakistan but specifically in the former FATA and Khyber Pakhtunkhwa. The Tribunal notes that according to the South Asian Terrorism Portal (SATP), 2018 saw a marked decrease in attacks and fatalities in FATA.[6]
[6] South Asian Terrorism Portal, Datasheet – FATA, current as at 26 March 2020, >
However, contemporary information also indicates that the areas immediately surrounding Parachinar may be falling once more into a cycle of violence. According to the PIPS Pakistan Security Report 2019:
In 2019, North Waziristan reemerged as a major flashpoint of insecurity and militant violence where 53 terrorist attacks took place, or over 42 percent of the total reported attacks from KP, which killed 57 people and injured 93 others. Two other KP districts where more than 10 attacks happened in the year included DI Khan (14 attacks) and Bajaur (11 attacks) districts. While seven (7) terrorist attacks happened in Bannu, the provincial capital Peshawar and Tank faced six (6) attacks each. Meanwhile five (5) attacks took place in each of Mohmand and South Waziristan districts. In all, terrorist attacks were recorded in 17 districts of KP.[7]
[7] Pak Institute for Peace Studies, Pakistan Security Report 2019, Vol 12 Spring 2020 (Jan – Jun) No. 1, >
This report also notes that sectarian attacks in the 2019 year increased, although the total number of attacks, at 14 remained low, they were responsible for the death and injury of over 100 people.[8]
[8] Pak Institute for Peace Studies, Pakistan Security Report 2019, Vol 12 Spring 2020 (Jan – Jun) No. 1, >
The FATA security report for 2019 notes that although Kurram district was peaceful for most of 2019, there was a terror incident in the last quarter, and ‘… the district is highly vulnerable to terrorist attacks due to its proximity to the Nangarhar, one of the volatile provinces of Afghanistan’.[9] The report goes on to explain that the vulnerability to terror-related attacks relates to the proximity to Nagarhar, but also to ‘the sectarian nature of conflict in the district and thirdly, its proximity to the North Waziristan district and Tirah valley of Khyber district, where militants are still able to conduct terrorist activities, makes the district vulnerable to terrorist threat’.[10]
[9] ‘FATA Annual Security Report 2019’, FATA Research Centre, 20 January 2020, 3. FATA Annual Security Report 2019’, FATA Research Centre, 20 January 2020, 9. type="1">
The USDOS Country Report on Terrorism notes in relation to Pakistan that:
Although the Pakistani government voiced support for political reconciliation between the Afghan government and the Afghan Taliban, it did not restrict the Afghan Taliban and the Haqqani Network (HQN) from operating in Pakistan-based safe havens and threatening U.S. and Afghan forces in Afghanistan. The government failed to significantly limit Lashkar e-Tayyiba (LeT) and Jaish-e-Mohammad (JeM) from raising money, recruiting, and training in Pakistan – and allowed candidates overtly affiliated with LeT front organizations to contest the July general elections.[11]
[11] USDOS, Country Reports on Terrorism 2018 – Pakistan, October 2019, >
There are indications that Lashkar-e-Jhangvi (LeJ) has formed an alliance with IS, with both expressing their strong sectarian, anti-Shia stance; ‘LeJ is at heart a Sunni-Deobandi supremacist group, intending to transform Pakistan into a Sunni caliphate’.[12] The USDOS Country Report on Terrorism notes that LeJ may have coordinated attacks in Pakistan with other terrorist groups.[13] Sunni militant groups continue to operate in Kurram Agency.[14]
[12] Zahid, F., ‘Lashkar-e-Jhangvi al-Alami: A Pakistani Partner for Islamic State’, Terrorism Monitor, Jasestown Foundation, 27 January 2017, USDOS, Country Reports on Terrorism 2018 – Pakistan, October 2019, ‘Terror incidents continued to decline in 2018’, Express Tribune (Pakistan), 1 January 2019; ‘FATA Annual Security Report 2019’, FATA Research Centre, 20 January 2020.
There are reports, which support the applicant’s claims, that other insurgent groups are moving into the area of his home region. It is reported that the Haqqani network moved from Waziristan to Kurram Agency.[15] The DFAT report also acknowledges that violence in the applicant’s home area may be cyclical, stating that in their assessment, attacks and violence against Turis (and the applicant by extension), can and may occur, and there is still a moderate risk of sectarian violence from militant groups, because of their Shia faith.[16]
[15] EASO Country Of Origin Information Report: Pakistan: Security Situation, October 2019, 30.
[16] DFAT Country Information Report – Pakistan, 20 February 2019 3.26.
The Tribunal has carefully considered the country information and has considered what this may indicate for the future. The country information leads the Tribunal to make the following findings. Whilst the situation in Kurram Agency is much improved from previous years, the evidence indicates that violence is cyclical in this area, that insurgents are moving into the area, and that actors such as LeJ have the intent, and capacity, to conduct terror attacks against Shia targets, possibly with the assistance of other terror groups. LeJ’s mission is to remove Shia and other minorities to bring in a Sunni caliphate. This group appears to have links with IS as well as with local terror groups. Kurram Agency is described in multiple sources as fragile and with the potential to see further cyclical violence.
The war in Afghanistan, which has not lessened but has changed tempo and dynamic as the Taliban prepare to have a greater area of influence, will lead to instability in the local area, including in Pakistan, particularly areas that are proximate such as Kurram Agency.
The Tribunal finds that the potential for sectarian terror attacks against Shia in Kurram Agency is greater than remote, and that the applicant, as a Turi Shia is particularly vulnerable because the Turi tribes have historically opposed extremists and terror groups that have attempted to enter Kurram Agency. The violence in Kurram Agency therefore can be seen as cyclical in nature with strategic, tribal and sectarian dimensions. Within this, the Turi tribes, with a predominance of Shia and being concentrated in Kurram Agency, are a realistic target for attack by these groups. Looking towards the reasonably foreseeable future, and the very real possibility that the security situation in Afghanistan will degrade further, the Tribunal finds that Turi Shia, in Kurram Agency, face a real chance of persecution for reasons of their Shia religious beliefs and their actual or imputed political opinion as opposing the Sunni theocratic worldview of the LeJ, IS and other Sunni terror groups.
The Tribunal finds that if the applicant returns to his home area in the reasonably foreseeable future there is a real chance, that is, one that is not remote or far-fetched, that he would be subjected to serious harm amounting to persecution on account of his Turi ethnicity (race), his Shia Muslim religion and his imputed political opinion. The Tribunal finds that his fear of persecution is well-founded.
Availability of state protection
The applicant fears harm from non-state actors, specifically the TTP, LeJ, the Taliban and other Sunni terror groups. Country information indicates that, despite the sporadic security actions of the Pakistan state, state protection from the Pakistan government in the applicant’s home area remains weak, unpredictable and vulnerable to significant corruption. The Tribunal is particularly concerned by the reporting of the USDOS Country Report on Terrorism that notes the Pakistan government did not restrict the Afghan Taliban and the Haqqani Network from operating safe havens in Pakistan, nor did it limit terror organisations from raising money, recruiting and training in Pakistan. DFAT reports that overall ‘state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will’.[17]
[17] DFAT Country Information Report – Pakistan, 20 February 2019, 5.1.
While DFAT comments that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will. DFAT indicates that despite measures introduced to curb violence across the country under the NAP-strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families.[18]
[18] DFAT Country Information Report – Pakistan, 20 February 2019, sections 5.1-5.2.
On the information before it, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Therefore, the Tribunal finds that, considered cumulatively, the applicant faces a real chance of persecution from the TTP, LeJ, the Taliban and other Sunni terror groups for reasons of his actual and imputed political opinion of opposition to those groups, and from Pakistani authorities and non-Pashtuns community members due to his race (Pashtun ethnicity), now and in the reasonably foreseeable future.
Relocation
The Tribunal observed that s 5J(1)(c) of the Act requires that if the Tribunal finds the applicant faces a real chance of persecution involving serious harm if he is returned to Pakistan, that this must relate to all areas of the country, and the country information suggests there may be areas in Pakistan where the risk of serious harm he faces from extremists would be lower than in Kurram Agency.
The Tribunal noted that there are large Shia communities in big cities in Pakistan. The Shia population is dispersed throughout the country, and in most parts of the country, ‘Shia and Sunni communities are generally well integrated’.[19] DFAT identifies Islamabad and Rawalpindi as reasonably safe from politically motivated terror and sectarian violence, with a relatively high level of internal migrants from conflict zones including the former FATA.[20]
[19] DFAT Country Information Report – Pakistan, 20 February 2019, 3.91.
[20] DFAT Country Information Report – Pakistan, 20 February 2019, 5.18.
Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common.
Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors. DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country.
DFAT assess that Turi, face a similar risk of official discrimination migrating within Pakistan for reason of their ethnicity as other Pashtuns and no additional risk of official discrimination based on their religion as other Shia.[21] As such the Tribunal notes that DFAT assesses that Pashtuns report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR500,000 (AUD5,500) on the threat of being listed as terrorists. Pashtuns also report frequent blocking of their NIC’s when relocating (see Computerised and Smart National Identity Cards (CNICs and NICs)), which impedes access to property and assets. Where evidence of wrongdoing is lacking and influential connections are available, Pashtun community leaders are typically able to secure the release of arrested Pashtuns. DFAT further notes, when discussing relocation of Turi peoples: ‘Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes. Turis claim a Turi child died at a North Waziristan checkpoint because security officials refused the family’s request to cross to visit a hospital’.[22]
[21] DFAT Country Information Report – Pakistan, 20 February 2019, 3.24.
[22] DFAT Country Information Report – Pakistan, 20 February 2019, 3.20.
DFAT assesses that, due to official discrimination, Pashtuns prefer to relocate to areas where they have family connections, notably within Khyber Pakhtunkhwa or Sindh (not including Karachi), and to avoid resettlement in Punjab.
In this regard, noting the applicant’s personal circumstances as someone who is particularly vulnerable due to suffering a significant mental health condition and the country information cited above regarding the official and societal discrimination faced by Pashtuns/Turis seeking to relocate outside of Kurram Agency, which includes ethnic profiling, discrimination in finding employment, harassment by security officials, demands for large bribes under threat of being listed as a terrorist, and blocking of NIC’s, the Tribunal considers that, in the applicant’s particular individual circumstances, the impact of such discrimination would be such that it would amount to serious harm. This is because the discrimination and harassment could threaten the applicant’s liberty and cause him significant economic hardship that threatens his capacity to subsist. The Tribunal notes that the discrimination and harassment is such that DFAT advises that Pashtuns (and Turis who are assessed by DFAT to face a similar risk of official discrimination), now seek to avoid resettlement in Punjab altogether, despite it being Pakistan’s most populous and one of the more secure provinces.
The Tribunal concludes, therefore, that the applicant faces a real chance of suffering persecution involving serious harm anywhere in Pakistan, based on a cumulative consideration of the risks of harm he faces because of his actual and imputed anti-TTP, LeJ, Taliban and other Sunni terror groups political opinions, and due to his race (Pashtun Turi ethnicity).
CONCLUSION
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, he 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).
Paul Noonan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3243

1 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Remedies