1719102 (Refugee)

1719102 (Refugee) [2019] AATA 6417 (8 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719102
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Christopher Smolicz
DATE:8 August 2019
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 08 August 2019 at 1:48pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – religion – Shia Muslim – race – Pashtun Bangash – imputed political opinion due to religion and ethnicity – general and specific threats and attacks by Taliban and other militant groups – withdrawal of daughter from school – applicant’s father has links with government and intelligence agencies – mental health – lack of appropriate services in Pakistan – relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MZYLH v Minister for Immigration [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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 18 December 2012 and the delegate refused to grant the visa on 9 April 2014.
The applicant subsequently applied to the Tribunal for review of the delegate’s decision. On 23 October 2015 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa (the first Tribunal decision).[1]
[1] AAT Decision Record Case Number 1408256
The applicant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the first Tribunal’s decision. On 30 November 2016 the FCCA dismissed the application. The applicant appealed the decision to the Federal Court of Australia (FCA). On 12 July 2017 the FCA found that the primary judge erred in constructing the Tribunal’s reasons. Considering the first Tribunal’s reasons as a whole, the FCA found that the first Tribunal adopted a relative, rather than an objective, approach in applying the real chance test in the context of the relocation issue. That amounted to a jurisdictional error and the matter has been remitted back to the Tribunal for reconsideration.[2]
[2] CID15 v MIBP [2017] FCA 780
The applicant appeared before the Tribunal on 6 August 2019 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.
A summary of the relevant law is set out at Attachment A.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue raised by the applicant in this matter is whether he meets the ‘refugee criterion’ or comes within Australia’s complementary protection obligations because of his:
·     Shia Muslim religion
·     Pashtun ethnicity and Bangash tribal affiliation
·     imputed political opinion, namely being opposed to the Pakistani Taliban by virtue of his Shia religion and Bangash tribal affiliation.
Summary of substantive claims
The Tribunal sets out the claims and evidence advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims and evidence from the applicant’s statement of claim, his protection interview and the Tribunal hearing.
The applicant presented in a manner the Tribunal perceived to be truthful and credible, and his evidence was consistent with the country information applicable to his particular circumstances which are detailed below. The Tribunal has decided to accept the applicant’s evidence.
The applicant is [age] years old. He is a national of Pakistan. He arrived in Australia without authority, by boat, in July 2012. He comes from a village in [Location 1], Kurram Agency, in the Federally Administered Tribal Areas (FATA) of Pakistan, an area that borders Afghanistan. He is of Pashtun ethnicity, a member of the Bangash tribe, and a Shia Muslim (otherwise known as Shi’ite). He speaks Pashtu and Urdu.
The Tribunal finds the applicant to be a citizen of Pakistan and that he presently has no existing right to enter and reside in any other country. The Tribunal finds that Pakistan is the country of reference for the purpose of the Refugee Convention.
The Tribunal has considered whether the applicant could return to his home area of [Location 1], Kurram Agency in the province of the FATA, Pakistan. The Tribunal accepts the applicant is a Shia Muslim of Pashtun ethnicity and a member of the Bangash tribe.
The applicant is married and his wife and two [children] have remained in Pakistan. The applicant has limited education. He has worked in his father’s [workplace] in [Location 1] and transporting goods.
The applicant provided the following evidence about his experience in Kurram Agency which caused him to escape Pakistan and apply for asylum in Australia.
He fears harm on return to Pakistan from the Pakistani Taliban and other militant Sunni groups such as Sepah-e-Sahaba and Lashkar-eJangawi for reasons of his ethnicity (Pashtun of the Bangash tribe), his religion (Shia Muslim) and associated (anti-Taliban) political opinion.
In about 2007/2008 he lived with his family in a house situated on top of his father’s [workplace] in [Location 1]. The Taliban burnt a number Shia houses in the area and the applicant’s home and [workplace] was destroyed. The family moved to his [relative]’s house. In support of his evidence the applicant provided photographs of the ruins of a destroyed house in [Location 1] which he claims was his family home.
In June 2008 a [vehicle] owned by the applicant was attacked by the Taliban whilst the driver was travelling from Peshawar to [Town]. The driver was killed and the goods destroyed.
The applicant said that he was first personally threatened by the Taliban in about January 2012 when he was bringing supplies from Peshawar to [Location 1]. He claims about 10 men stopped his [vehicle], and one showed him a knife with markings that identified them as Taliban. They asked if he was Shia and said that if they saw him on the road again they would kill him. They took photographs of the applicant and his [vehicle]. The applicant said he stopped transporting goods after this incident, and instead his work consisted primarily of helping his father at his [workplace] in [Location 1].
The applicant said that the two incidents were the catalyst for his decision to leave Pakistan. First, in January 2012 he became aware that his name was one on a ‘threat’ letter from the Taliban. All the names belonged to the fathers of girls who had attended school with the applicant’s [daughter]. The bus driver who used to drive his daughter to school had been kidnapped by the Taliban. The driver had stopped working a couple of days prior to being kidnapped. The driver told the applicant’s daughter that he had received a letter from the Taliban telling him not to drive the girls to school, because education for girls is forbidden in Islam.
When the applicant was in Darwin he was told by his wife that the bus driver had been taken to Afghanistan, tortured, and released on payment of ransom. He returned to [Location 1] but has become mentally unwell. The applicant said all the fathers’ whose names appeared on the list from the Taliban have fled the area.
The applicant said after he saw the letter from the Taliban with his name on it he initially stayed at home. However on 17 February 2012 – the date of the second incident – he ventured to town to see a doctor. All the surgeries and pharmacies were closed. Instead he visited a friend who owned a [business] who took him to his [workplace] to get some [products]. However on the way, as the applicant and his friend were approaching a Sunni mosque, a bomb exploded, killing the applicant’s friend. The applicant was not injured in the blast. The applicant said many other people also died. The Taliban took responsibility for the bomb. The applicant then decided to make arrangements to leave Pakistan.
The Tribunal notes that reports confirm that on 17 February 2012 there was a suicide bomb blast in Parachinar, Kurram Bazaar killing 39 people. The terrorist attack was carried out by Tehrik-e-Taliban Pakistan (TTP) and was specifically targeting Shia Muslims during Friday Prayers (Namaz-e-Juma).[3]
[3]
The applicant said when he left [Location 1] (in March 2012) the [vehicle] he was travelling in ran over a bomb on the road near [Location 2] and a student sitting at the back suffered concussion. The injured passenger was transferred to another [vehicle] however the applicant and other passengers continued on their journey in the same [vehicle], after the driver changed the tyre and back windows.
The applicant fears that if he is forced to return he would be kidnapped, tortured or possibly killed. He claims he will be targeted in Pakistan because he is a Shia Muslim and a member of the Bangash tribe. He claims the Taliban remain active in his area and continue to target Shias.
New evidence
The applicant provided the Tribunal with a statutory declaration dated 31 July 2018 in which he makes the following evidence.
The applicant said that his previous Tribunal hearing was approximately four years ago and a lot has changed in his life. His father has become a village elder and consults with other elders (Jirga) and government representatives regarding the fragile security situation in his home area. His father’s work involves gathering and sharing sensitive information with the government and intelligence agencies in order to expose and prevent terrorist organisations in his area. When he last spoke to his father he was in danger because the government was encouraging locals to stand up against extremists and vote in provincial elections through him. Due to the poor security situation his family have withdrawn his children from school.
He claims that since arriving in Australia he has taken part in a number of immigration interviews. He has found communicating difficult due to language barriers because the interpreters have been Pashto speakers that speak a different dialect. He has a specific accent and dialect that is distinct from mainstream Pashto and is influenced by the Urdu language. Prior to leaving Pakistan he spent his entire life in [Location 1] and had little exposure to people outside his region.
His departure to Australia is now common knowledge in his home area. He fears that his children may be kidnapped for ransom by bandits who perceive him to be wealthy because he has been living in a western country, Australia.
Since arriving in Australia he has amounted debts due to a 2017 failed business venture. He is been unable to assist his family financially in Pakistan. His personal relations with his family in Pakistan have come under stress due to the uncertainty of his future visa status.
Bangash Tribe – Kurram Agency
In assessing the applicant’s claims the Tribunal has had regard to the following country information and finds that historically the persecution faced by Bangash Shia encompasses strategic, tribal and sectarian dimensions.
The Tribunal finds the country information is consistent with the applicant’s claims that Sunni militant groups such as Lashkar-e-Jhangvi (LeJ)[4] and TTP have targeted Bangash Shia Muslims in Kurram Agency.
[4] LeJ, is a Sunni supremacist and anti-Shia extremist group and an offshoot of SSP, with whom they maintain strong links
Kurram Agency has a population of about 450,000 and is home to two tribes, Turis and Bangash. Country information confirms that Bangash Shias in Kurram face the same issues as Turi Shias. Kurram is the only one among Pakistan's seven semi-autonomous tribal districts which is inhabited by Shia Muslims. The district is surrounded on three sides by Afghan territory where elements linked to the Pakistani Taliban and the so-called Islamic State group have created sanctuaries. These elements adhere to a hard-line Sunni version of Islam which is fiercely anti-Shia. They see Shias as heretics and consider it their sacred duty to eliminate them from the face of the Earth. [5]
[5] ‘The little boy killed at the market’, BBC News, 26 January 2017, CXC90406620866; ‘Can Shi’a and Sunni overcome the sectarian divide? Displacement and negotiations in Kurram, 2007-2011’, Internal Displacement Monitoring Centre (via website of Dr Farhat Taj, University of Oslo), May 2011, CISD9559B12437; ‘Profiles of Pakistan’s Seven Tribal Agencies’, Jamestown Foundation, 19 October 2007, CX174070
Although part of Pakistan, the FATA region functions as a semi-autonomous area. Traditional patterns of governance continue. The Jirga (assembly of tribal elders) define laws, regulations and policies. Pakistani courts and law enforcement have historically almost no jurisdiction over the area. Carrying arms is customary practice.[6]
[6] ‘Profiles of Pakistan’s Seven Tribal Agencies’, Jamestown Foundation, 19 October 2007, CX174070
In assessing the applicant’s claims the Tribunal finds that one of the objectives of the Taliban is to persecute the Bangash people not only due to their Shia Muslim faith but also in order to seek retribution for recent military conflicts. Reports confirm that the Kurram agency has often been called “pro-Northern Alliance” because the Bangash tribe belongs to the Shi’ite sect of Islam which is anti-Taliban.[7] In 2007-2008 the Turi and Bangash Shia tribes of Kurram fought a protracted war against the Pakistani Taliban to prevent them from over-running Kurram.[8] Specifically, it has been reported that the conflict was driven by the Taliban’s desire to access Afghanistan through the strategic Upper Kurram Valley, and the presence of Sunni militant groups with a clear sectarian agenda.[9] The Tribunal finds that this evidence is consistent with applicant’s claim that he is a person who would be at risk from the Taliban in his home area.
[7] ‘Profiles of Pakistan’s Seven Tribal Agencies’, Jamestown Foundation, 19 October 2007, CX174070
[8] ‘The little boy killed at the market’, BBC News, 26 January 2017, CXC90406620866; ‘Can Shi’a and Sunni overcome the sectarian divide? Displacement and negotiations in Kurram, 2007-2011’, Internal Displacement Monitoring Centre (via website of Dr Farhat Taj, University of Oslo), May 2011, CISD9559B12437; ‘Profiles of Pakistan’s Seven Tribal Agencies’, Jamestown Foundation, 19 October 2007, CX174070
[9] ‘‘It's Just a Sunni-Shi’a Thing’: Sectarianism and Talibanism in the FATA of Pakistan’, Abou Zahab, M. in ‘The Dynamics of Sunni-Shia Relationships: Doctrine, transnationalism, intellectuals and the media’ edited by Marechel, B. and Zemni, S., Hurst & Company, 2013, CIS29402; ‘Sunni Deobandi-Shi’i Sectarian Violence in Pakistan: Explaining the Resurgence since 2007’, Middle East Institute (United States), December 2014, pp. 63, 71–74, CIS2F827D91993; ‘The Battle for Pakistan: Militancy and Conflict in Kurram’, Mahsun, MK, New America Foundation, April 2010, CIS18543
Reports also support the applicant’s claims that in the first quarter of 2012 Shias continued to be targeted in Kurram Agency, with 30 security incidents in Kurram including 15 bomb attacks.[10] In July 2013 multiple bomb blasts in Parachinar were reported to have killed around 50 people and injured over 100.[11]
[10] FATA Research Centre 2012, Security Report First Quarter 2012, p. 12
[11] The Express Tribune ‘Multiple blasts in [Location 1] kill 50, injure 122’, 26 July 2013, available at
1]-kill-12-injure-20/.
The Tribunal also finds that country information documenting the danger for Shia travelling by road in Kurram Agency is consistent with the applicant’s claims. Specifically, during much of the 2007–2011 period the road from Parachinar to Peshawar was closed to Shia travellers by Sunni militants. This forced local Shia tribes in Upper Kurram to travel to other parts of Pakistan via Afghanistan.[12] In 2011, a deal was reached with militants to allow access to Afghanistan through Kurram.[13] In May 2011 a joint report by the Institute for the Study of War and Critical Threats describes how the conflict in Kurram seriously affected the livelihoods of those living in Kurram, and Shia populations in Parachinar in particular:
The intense fighting resulted in the closure of the Thall-Parachinar road. The road is the main artery running through Kurram that connects all parts of the agency to Peshawar and the rest of Pakistan. The road is also the main supply route to Kurram Agency, especially upper Kurram. The closure of the road during the skirmishes resulted in a severe shortage of commodities and prevented the transportation of the wounded to hospitals in Peshawar when adequate care was not available locally. Fighting eventually petered out by April 15, following a ceasefire negotiated by the warring tribes and a military-imposed curfew throughout the main towns. The road between Sadda and Parachinar remained closed to traffic, however, effectively hemming in the Shia in upper Kurram.
The use of the Thall-Parachinar road is a defining issue for tribes in Kurram Agency, especially for the Shia tribes in upper Kurram. The closure of the road became a major grievance for the Shia community as the conflict in Kurram progressed. Sunni groups and Taliban militants fighting the Shias realized the strategic importance of the road to the Shias of upper Kurram and used their control over the road as a weapon in their efforts to pressure the Shias into capitulation.[14]
[12] ‘It's Just a Sunni–Shiite Thing’: Sectarianism and Talibanism in the FATA of Pakistan’, Abou Zahab, M. in ‘The Dynamics of Sunni-Shia Relationships: Doctrine, transnationalism, intellectuals and the media’ edited by Marechel, B. and Zemni, S., Hurst & Company, 2013, p. 185, CIS29402
[13] ‘Kurram deal-Haqqanis’ Afghan insurance policy’, DAWN (Pakistan), 18 February 2011, CXCB3E63421440; ‘Kurram Agency peace deal Tribal elders to enforce pact in [Location 1] only’, Express Tribune (Pakistan), 11 October 2011, CX302566
[14] Dressler, J. & Jan, R. 2011, The Haqqani Network in Kurram: The Regional Implications of a Growing Insurgency, Institute for the Study of War & Critical Threats, May, p. 5 < <CIS 22731>.
The Tribunal has also had regard to country information which supports the applicant’s claims that the Pakistan Taliban targeted girls’ schools in Kurram and other parts of FATA. For example, when the Pakistan Taliban gained control of Swat Valley in 2007 they banned girls’ education and banned women from teaching by edict in December 2008 and subsequently amended the edict to permit education of girls but only to grade 4. About 120,000 girls and 8000 female teachers stopped attending school. It has been reported that about 30 children were killed in attacks on school buses and more than 97 children injured and there were about 838 reported attacks on schools in Pakistan during 2009-2012.[15]
Real chance of persecution on return to Kurram Agency
[15] Global Coalition to Protect Education from Attack Pakistan >
As detailed above the applicant departed Pakistan in July 2012 and his claims for protection are being assessed in August 2019. In assessing the applicant’s claims the Tribunal must have regard to the security situation in his home area looking to the reasonably foreseeable future.

The Tribunal notes that the death toll from terrorist attacks in Kurram Agency, where Bangash predominantly live, spiked in 2017. The number of deaths in Kurram Agency jumped 607 per cent between 2016 and 2017, from 27 people killed to 191[16] of which 138 were civilians.[17] Although 52 security incidents occurred during 2017, most of the casualties were caused by four terrorist attacks in the first half of the year.[18]
[16] Center for Research and Security Studies, Annual Security Report 2017, 1 March 2018, p. 11 <CIS7B83941392>.
[17] ‘FATA Annual Security Report 2017’, Fata Research Centre, 17 January 2018, p. 7, CIS7B8394188
[18] ‘FATA Annual Security Report 2017’, Fata Research Centre, 17 January 2018, pp. 6–7, 15, CIS7B8394188
Specifically, an improvised explosive device, claimed to have been jointly planted by LeJ-offshoot, LeJ al-Alami (LJA) and the TTP, exploded in a vegetable market in Parachinar in January 2017 killing at least 21 people and injuring 87.[19] In March 2017, at least 24 people were killed near a Shia prayer hall in an explosion that was claimed by Jamaat-ul-Ahrar (JuA)[20] and 14 people were killed in April 2017 when a van hit a roadside bomb, which was reportedly planted by JuA who claimed to be targeting Shias and census collectors.[21] In the second half of 2017, 16 security incidents were recorded, as opposed to 36 in the first half of the year.[22]
[19] ‘Blast kills at least 21 in Pakistan vegetable market, says official’, Reuters (United Kingdom), 21 January 2017, CXC90406612371
[20] ‘Pakistan blast: Parachinar bomb leaves at least 24 dead’, BBC News (United Kingdom), 31 March 2017, CXC90406612375
[21] ‘Roadside bomb attack on van kills 14 in Kurram’, DAWN (Pakistan), 26 April 2017, CXC90406612376
[22] ‘FATA Annual Security Report 2017’, Fata Research Centre, 17 January 2018, p. 15, CIS7B8394188
Although reports confirm that 2018 was generally relatively safer year for Shia Muslims in Pakistan it is important to note that Khyber Pakhtunkhwa, including erstwhile FATA agencies, faced the highest number of terrorist attacks in 2018 compared to all other regions of Pakistan. It is reported that despite a 19 per cent decrease in terrorist attacks from 2017, a total of 125 terrorist attacks took place in the province, including five sectarian related, which claimed 196 lives and inflicted injuries on another 376 people. The number of those killed and injured in terrorist attacks in the province declined from 2017, by 43 per cent and 46 per cent, respectively.” [23]
[23] >
It was reported that a roadside bomb attack in January 2018 in Upper Kurram killed seven members of a family traveling to a village near Parachinar to participate in a funeral of a relative.[24] AFP news agency quoting a senior local government official, Basir Khan Wazir, said that the victims were Shia although other reports claim the victims were Sunni.[25] Although there were no further reported terrorist attacks in Kurram in 2018 a suicide attack targeting Shias in Kalaya, in the neighbouring Orakzai District killed 35 people in November 2018.[26] The ‘mastermind’ of the attack, as well as three other TTP members, were subsequently killed by the military.[27] One other Shia was killed in Khyber Pakhtunkhwa in 2018; in DI Khan, LeJ combatants killed the caretaker of an imambargah after a Shia group shot and killed a Sipah-e-Sahaba Pakistan (SSP)-linked individual earlier in the day.[28]
[24] ‘Six of a family martyred in Kurram roadside blast’, The News International (Pakistan), 31 January 2018, CXBB8A1DA25475. The Pakistan Institute for Peace Studies, for instance, does not ascribe a sectarian motive to the attack. ‘Pakistan Security Report 2018’, Pakistan Institute for Peace Studies, 6 January 2019, p. 35, 20190121110758
[25] Six of a family killed in landmine blast in Kurram, DAWN January 21, 2018 ‘Pakistan: Sectarian Savagery – Analysis’', Eurasia Review, 29 November 2018, CXBB8A1DA40015
[27] ‘Mastermind’ of Orakzai suicide attack killed in Hangu’, Dunya News (Pakistan), 17 January 2019, 20190117093805
[28] ‘Pakistan Security Report 2018’, Pakistan Institute for Peace Studies, 6 January 2019, p. 38, 20190121110758
Reports confirm that since the start of 2019, the TTP has carried out three major attacks in Balochistan’s Pashtun areas, bordering with Afghanistan and tribal areas. On January 1, TTP attacked a residential compound at a paramilitary force’s training base, killing security officials in Loralai district. In the same district, on January 29, the TTP carried out suicide attacks on a district police office, killing nine people and wounding 21.[29]
[29] >
It is important to note that although there is a relative reduction in sectarian violence in Pakistan the security situation is fluid and varies greatly across the country. DFAT advise that militant attacks can occur anywhere.[30] Specifically, DFAT report that the underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.[31]
[30] DFAT Country Information Report Pakistan 20 February 2019 [2.69]
[31] DFAT Country Information Report Pakistan 20 February 2019 [2.72]
In assessing the applicant’s claims the Tribunal has also had regard to the most recent UNHCR Eligibility Guidelines for Assessing the International Protection needs of Members of Religious Minorities from Pakistan. The UNHCR reports that asylum claims made by Pakistani nationals who are members of religious minorities require particularly careful examination of possible risks. Specifically, the UNHCR finds that ‘members of the Shi’ite [Shia] community may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion, ethnicity, (imputed) political opinion, and/or other relevant grounds’.[32]
[32] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 1 January 2017, 59 <CISEDB50AD3775>
The UNHCR reports that Shi’ites are the main targets of sectarian attacks in Pakistan. The UNHCR reports that the number of blasphemy allegations made against Shi’ites has ‘increased exponentially’ in the period from 2012 to 2015. Extremist Sunni militant groups reportedly view the Shi’ites as ‘heretics’, ‘infidels’ and ‘apostates’ who should be punished with death. Shi’ites are subject to violent sectarian attacks by such militant groups, which are reportedly able to act with impunity.[33] The UNHCR find that attacks are primarily targeting ordinary Shi’ite individuals in all parts of the country.[34]
[33] Ibid pp. 54-55
[34] Ibid pp. 57-58
DFAT assesses that Shi’a in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in [Kurram Agency], is higher than in other parts of the former FATA. [35]
[35] DFAT Country Information Report Pakistan 20 February 2019 [3.111]
Though acknowledging the improved security conditions for Turi Shias in Kurram (which the Tribunal understands to including Bangash Shias), DFAT assessed that the group ‘still face a moderate risk of sectarian violence’.[36]
[36] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, s.3.26, 20 February 2019
The Tribunal finds that although the threat to Shias has reduced in recent years Sunni militant groups continue to operate in the applicant’s home area.[37] Sectarian groups, such as Lashkar-e-Jhangvi and Islamic State, have publicised an ongoing intention to target Turi/Bangash tribesmen owing to their Shia faith and the fact that some tribesmen are fighting in Iranian-backed militias in Syria.[38]
[37] ‘Terror incidents continued to decline in 2018’, Express Tribune (Pakistan), 1 January 2019, 20190121150833; ‘FATA Annual Security Report 2016’, FATA Research Centre, 24 January 2017, pp. 17–18, CISEDB50AD120; ‘FATA Annual Security Report 2017’, Fata Research Centre, 17 January 2018, p. 15, CIS7B8394188
[38] ‘Daesh leaflets in Kurram Agency threaten a “specific sect”’, News International, 8 February 2017, CXC9040661620; ‘Shias of Parachinar; victims of Takfiri terrorism, govt. apathy’, Mehr News Agency (Iran), 22 April 2018, 20190110132325; ‘Coming home to roost’, Daily Times (Pakistan), 21 March 2018, 20190110135034; ‘One injured in IED blast in Kurram Agency’, News International (Pakistan), 13 March 2017, CXC9040664773; ‘No losses in truck blast near check-post in Kurram Agency’, News International (Pakistan), 11 February 2017, CXC9040664774
In conclusion the Tribunal has had regard to the country information and finds that violence against Shias in FATA is cyclical in nature and has strategic, tribal and sectarian dimensions. The Tribunal finds that Shias in FATA, particularly in Kurram Agency ([Location 1]), face a real chance of persecution due to their Shia religious beliefs. Specifically, the Tribunal finds that Bangash 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 also finds that the applicant’s claims also need to be seen in the recent historical context of the Taliban’s conflict with the Turi and Bangash Shia tribes in Kurram Agency. The Tribunal finds that the objective of the Taliban is to persecute the Turi and Bangash tribes not only due to their Shia Muslim faith but also in order to seek retribution for recent military conflicts.
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 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 TTP). 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,[39] 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.
[39] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 01 January 2017, p.55-56 <CISEDB50AD3775>
The US Department of State reports that the Pakistan police often failed to protect members of religious minorities, including Shias, although there have been improvements.[40] 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.[41] 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.
[40] US Department of State, Pakistan – Country Reports on Human Rights Practices 2015, 13 April 2016, section 1(d)
[41] USCIRF, Annual Report 2015- Pakistan, 30 April 2015, p.2
Relocation
Given the Tribunal has found that the applicant has a well-founded fear of being persecuted in his home area, the Tribunal has considered if it is reasonable in all his circumstances to relocate to some other part of Pakistan where there is no appreciable risk of the occurrence of the feared persecution.
The Tribunal notes that large Shia communities exist in big cities in Pakistan, which may present relocation options. The Shia population is spread throughout the country and forms the majority in the autonomous, but very remote, region of Gilgit Baltistan in Pakistan’s north. In most parts of the country, ‘Shia and Sunni communities are generally well integrated’, according to DFAT.[42]
[42] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, s.3.91, 20 February 2019, 20190220093409
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.
The applicant’s particular circumstances
When considering relocation, what is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation.[43] The Tribunal finds that the applicant’s own particular personal circumstances must therefore be carefully considered in assessing the question of relocation. The applicant claims he is unable safely to locate to another part of Pakistan to avoid sectarian violence. He claims he will be recognised as a Shia Bangash Muslim by his name, accent and appearance.
[43] SZATVv MIAC (2007) 233 CLR 18 per Gummow, Hayne and Crennan JJ at [24].
Country information confirms that Bangash Shias may be physically distinguishable from other Pashtuns, although these differences are less significant than those between Hazaras and other Shia groups. The Tribunal also accepts that a Bangash Shia may be distinguishable by name or address (if from a predominately Shia area). Similarly, ethnic and tribal names can reveal a person’s tribal or sectarian affiliation. DFAT also confirms that Bangash and Turi accents are also “easy to distinguish from other Pashtun groups”. [44]
[44] DFAT Thematic Report Shias in Pakistan January 2016 DFAT
The applicant also states that he has never travelled outside his home area and does not have any family connections to help him secure employment and accommodation. He claims that if he is required to show his national identity card to obtain employment or accommodation it would become apparent that he is from Kurram Agency. The applicant claims these factors would identify him as a Bangash Shia and may bring him to the attention of the terrorist groups who target Shias in Pakistan.
The applicant said he is unable to rely on his family in Pakistan for financial support. His wife and two [children] live with his [relative] as they have no means to support themselves. His [children] no longer attend school due to security concerns. They share one room and are expected to perform all household duties for the [relative]. He described their living conditions as like a ‘prison cell’.
Mental health
The applicant claims he has suffered significant mental health problems for a number of years as a consequence of his journey to Australia and his experience in Pakistan and the ongoing uncertainty of his current migration status. He consults a psychiatrist on a fortnightly or monthly basis.
The Tribunal observed at the hearing that the applicant was extremely, anxious and emotional when asked to explain his family’s circumstances in Pakistan. The applicant said that he is unable to sleep and has stopped working since he commenced taking anti-depression medication.
The Tribunal was provided with a psychiatrist report dated [June] 2019 in support of this evidence. According to the report the applicant presented with a history of depression particularly over the approximately 18 months. He presented as being isolated and socially withdrawn. After prolonged periods of separation he expressed that he lost hope that he will ever see his family again. He has not spoken to his wife and children for some time because of his despair. He fears his [children] will no longer recognise him.
In summary the psychiatrist is of the opinion that the applicant demonstrated diagnostic features of major depressive disorder. His current state of depression is in the context of significant post migration trauma as a consequence of his prolonged separation from his family and social withdrawal. He has vulnerability to depression because of the traumatic experiences he has endured in the past. His level of functioning has declined and he is no longer able to work and is socially withdrawn. The psychiatrist concludes that if the applicant were to return to Pakistan he would not be able to access suitable mental health treatment and there would be a significant risk of deterioration of his mental state.
The Tribunal has had regard to the psychiatrist’s report and finds that the applicant’s mental health is a relevant factor in considering whether it would be reasonable for him to relocate to another area of Pakistan to avoid convention based persecution. The Tribunal notes that this evidence was not before the delegate or the first Tribunal.
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, Al Jazeera 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.[45]
[45]

The World Health Organization (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.[46]
[46]
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.[47]
[47]
The Tribunal accepts the applicant’s family continues to reside in Kurram Agency and that he has no family ties or community support networks outside his home area. The Tribunal also accepts that the applicant has limited education and capital to readily assist him in finding suitable employment and accommodation. The Tribunal also notes that the applicant is married with two children. The Tribunal finds that relocation would be easier for him initially on his own, it is reasonable to expect he would seek to be reunited with his wife and children, making securing suitable accommodation and sufficient income considerably more difficult. In light of the above circumstances the Tribunal finds that it would be unreasonable to expect the applicant could relocate outside his home area given his current state of mental health.
In conclusion, having regard to the applicant’s personal circumstances the Tribunal finds that it is not reasonable for the applicant to relocate to any other part of Pakistan to avoid 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

ATTACHMENT A
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

‘Suicide bomb attack in Parachinar, 39 killed while dozens injured’, Pakistan Christian Post, 19 February 2012, CX311620

[2019] AATA 6417

8 August 2019

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