1720223 (Refugee)

[2019] AATA 6723

1720223 (Refugee) [2019] AATA 6723 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720223

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Noonan

DATE:4 December 2019

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 04 December 2019 at 1:20pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal –religion – Shia – race – Turi tribe – social work – organising Shia rallies – fear of extremist groups – injury in a Taliban attack – physical assault – forced conversion by Sunnis – fear of killing – interaction with local Madrasa – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 36, 65, 91, 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 dependant.

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 who claims to be a citizen of Pakistan applied for the visa on 28 November 2013 and the delegate refused to grant the visa on 13 March 2015. The applicant provided a copy of the delegate’s decision record with his application for review to the tribunal.

3. On the basis of the applicant’s Pakistani passport, a copy of which is retained on his Departmental file, the Tribunal is satisfied that the applicant is a Pakistani national and that Pakistan is his receiving country for the purposes of assessing his claim for protection.

4. The applicant appeared before the tribunal (differently constituted) on 8 September 2016 to give evidence and present arguments. On 3 February 2017 the tribunal affirmed the delegate’s decision of 13 March 2015. [In] August 2017 the Federal Circuit Court remitted by consent the tribunal’s decision made on 3 February 2017. The remittal reason was given as:

   “The MIBP accepts that the Tribunal fell into jurisdictional error in circumstances where the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) (the Act) by not putting the applicant’s brother’s oral evidence to the applicant for comment pursuant to s.424A of the Act, where the applicant’s brother’s oral evidence undermined the applicant’s claims and was the reason, or part of the reason, for affirming the decision under review”.

5. Due to the order made [in] August 2017 the matter was listed for hearing before the tribunal.

6. The applicant appeared before the tribunal on 22 October 2019 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

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

   RELEVANT LAW

8. 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

9. 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).

10. 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.

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

    Complementary protection criterion

19. 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

22. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of the Complementary Protection Guidelines and the Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Country of reference

23. The tribunal accepts on the basis of his passport and other evidence that the applicant is a citizen of Pakistan and has assessed his claims against that country.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant is owed protection obligations by Australia. For the following reasons, the tribunal has concluded that the decision under review should be remitted.

    The Applicant’s oral and written evidence

25. The applicant’s original claims are set out in a statutory declaration provided together with his protection visa application. He has also provided several written statements and submissions from his representative both to the previously constituted tribunal and to the currently constituted tribunal. The applicant’s claims as set out in his original written statement are as follows:

    ·     He is a Pashtun Shia Muslim from the Turi tribe born in Rawalpindi but taken to Parachinar shortly after. His family moved between Rawalpindi and Parachinar, Kurram Agency for a number of years after the applicant’s birth before returning to live permanently in Rawalpindi in 1996.

    ·     The applicant was continuously harassed at school due to his Shia faith, including being called an infidel and a non-Muslim.

    ·     Despite living in Rawalpindi the applicant and his family regularly returned to Parachinar for holidays. In November 2007, during one such visit, the applicant was injured in a Taliban attack on a Shia procession/prayer session and was hospitalised for 25 days.

    ·     Prior to his departure from Pakistan in 2008, the applicant’s brother [Brother A] volunteered for many Shia [organisations], for which he was continuously threatened and harmed.

    ·     The applicant also felt he had a duty to assist the Shia community. He volunteered at a local imambargah in 2008-2010, managed events and organised processions in his area. When he visited Parachinar he worked departure from Pakistan the applicant started receiving threats and was advised that he must stop assisting the community or will be killed.

    ·     In 2010 two men on motorbike came to his father’s shop, beat and threatened to kill the applicant if he continued to assist the Shia community. The applicant’s father thought that the situation would improve after [Brother A’s] departure but the threats continued.

    ·     Local mullahs threatened the applicant’s father that he must convert to Sunni Islam or be killed. The applicant, his father and another brother were taken by local mullahs to the madrassa and forced to change their religion. A mullah came to the family shop and forced them to go to a madrassa where they forced to pray and preached about Shia Muslims being anti-Islamic, particularly Shias from Parachinar who deserved to be punished for war.

    ·     The applicant’s father believed the family could pretend to follow the Sunni faith to avoid harm. The applicant’s father advised that they could still follow the Shia faith at home. Members of the madrassa would come to the applicant’s father’s shop asking for money to support their cause. The family was required to provide money to convince them they were supportive. Members of the madrassa also wanted to marry the applicant’s sister off to a Sunni man.

    ·     In late 2011 mullahs began questioning the applicant’s belief in the Sunni faith and regularly asked if he would attend religious camps to learn about religion. The applicant was fearful and made up excuses to avoid going to religious camps.

    ·     Despite attending Sunni prayers, the applicant did not want to accept the teaching of the Sunni faith because it relied upon violence and he was opposed to the mistreatment of Shias.

    ·     In early 2012 the applicant’s Shia friends encouraged him to return to their mosque. The applicant began attending an imambargah but only a few times a month to minimise harm. He attended Muharram processions in 2012. He could not continue pretending to be a Sunni.

    ·     Due to his attendance at Shia festivities and his lack of attendance at the madrassa, the applicant’s father was approached by mullahs. The applicant’s father told the applicant not to come back home because the mullah advised that he will kill the applicant. The applicant was in hiding until he was able to leave Pakistan.

    ·     The applicant fears harm from Sunni extremist groups and local mullahs in Rawalpindi who believe he betrayed them and for not continuing to support them. He also fears harm as a Shia Muslim because Sunnis and extremists do not see them as real Muslims. The fact that he assisted Shia communities in Parachinar and Rawalpindi puts him at further risk. He cannot return to Parachinar because his family there had come to hate them for professing to be Sunnis. Even if they believed he was Shia, he would be at risk from extremists there.

26. The previously constituted tribunal summarised further written statements made to the tribunal as follows:

    • The applicant was known as [Brother A’s] brother and assisted [Brother A] in various Shia community activities at university.
    • After [Brother A’s] departure, Sunnis from the nearby madrassa started to regularly come to the family’s shop to question their beliefs and ask about [Brother A’s] whereabouts. In late 2009, this behaviour became worse and more aggressive. On approximately three occasions, local Sunnis told the applicant to go inside so they could speak with his father alone.
    • From approximately late 2009 Sunnis often came to the family’s shop on before Friday prayers to tell the applicant and his father to close the shop and come to prayers. They were polite at first but after a few weeks, they said the applicant and his family members did not have a choice.
    • In March 2010 Sunnis came to the shop and advised the applicant and his father that they had to go to see the mullah at the madrassa to learn about Sunni beliefs. They were taken to the mosque for Friday prayers and then to the madrassa, where a scholar gave them religious texts to read and learn in order to become good Sunnis. Every Friday after prayers they had to go to the madrassa for religious classes. During one such class, they were told to recite the shahada (Muslim declaration of belief) but to leave out the part regarding Ali, which is recited by Shias. When the applicant and his father did so, they were told they were ‘true Muslims’. This is when the Sunnis believe the applicant and his father had converted.

27. In the lead up to the currently constituted tribunal’s hearing, the applicant’s representative made a written submission, which is summarised as follows:

    ·Historical persecution of Pashtun Shia Turis for reasons related to their Shia religion, Turi ethnicity, active armed engagement with Sunni extremists and perceptions as pro-USA and pro-Iran indicates that there is a future risk of serious harm to the applicant in the reasonably foreseeable future and that this also precludes relocation as an option for this group.

    ·The latest DFAT Country Information Report does not adequately deal with the risks to Pashtun Turi Shia in Pakistan outside of considerations related to them being Shia Pashtuns. Other risk factors relate to perceptions of Turi’s as anti-Taliban and pro-Iran, the cyclical nature of sectarian violence in Pakistan, increasing terrorist attacks on political leaders and workers, increasing repression of media covering sectarian violence, increasing religious extremism in Pakistan, the US leaving Afghanistan and increasing terrorist attacks in Pakistan, increasing political relations with Saudi Arabia, sectarian violence in Syria increasing perceptions of Turi’s as pro-Iran, anti-Shia groups growing in international influence and an increasing threat from the anti-Shia militant group Lashkar-e-Jhangvi (LeJ) to Shia and specifically Turi throughout Pakistan.

    ·Recent decisions of this Tribunal (differently constituted) have found that anti-Shia extremists continue their activities throughout Pakistan, and while large communities of Shia live in urban centres, Turi’s are identifiable by their ID cards. There is a documented longstanding hostility between Turi and Taliban and other extremists, which means that the risk to Turi’s extends beyond Kurram Agency. Further the applicant’s past experience of persecution should also be seen within this overall context when assessing the threat of harm to him should he be required to return.

28. The applicant stated that his father and other brother continue to reside in Rawalpindi at his shop near the Madrasa. They now live there as Sunnis who have converted. He grew up in the shop and attached residence. He moved to Rawalpindi with his family when he was [age] years old. The family moved there from Parachinar for work and education reasons.

29. The applicant submitted that he decided to leave Pakistan as he felt he was in danger from extremists. He was forced to convert from the Shia to Sunni sect. He subsequently did not adhere to Sunni dictates and he now fears Sunni extremists are after him as they consider him an infidel. He is sure he will be murdered by extremists if he returns to Pakistan. He did not seek help from the authorities as he believes they will not help him and there is a risk they might inform the Madrasa of his complaint.

30. He has received threats since being in Australia but he deleted these as he did not want to be reminded of his troubles.

1. The tribunal discussed with the applicant country information which states that DFAT is unaware of any examples of forced conversions between Muslim sects.[1] The applicant submitted that Shia who have been forced to convert to the Sunni sect do not report the matter due to shame and the media doesn’t care about the issue. Further, his situation was different in that he lived close to one of the largest Sunni Madrasa and therefore attracted the adverse attention of Sunni student and instructor attendees of the Madrassa when they became aware of the family heritage as Turi Shia.

   [1] Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 20 February 2019, p.36

2. In respect to threats from Madrassa attendees, the applicant submitted this first began in mid-2008. At first they did not make threats as they were expected to convert slowly. The applicant characterised the attendees at the Madrasa as extremists associated with Lashkar-e-Islam. He noted that his father built their shop in [year]. The Madrasa was there when they built the shop.

3. The applicant confirmed that he now holds no fear of harm from fellow Shias for reason of his claimed forced conversion to Sunni Islam.

4. The applicant submitted that his profile as the brother of a high profile Shia activist who has received protection in Australia may also make him a target for extremists if he went back. He submitted that his known failure to adhere to Sunni doctrines, his past history of organising Shia rallies in conjunction with his brother and his Turi heritage raise his risk profile such that he fears he will be targeted for serious harm upon his return by Sunni militants and extremists.

   Country Information

5. The DFAT report on Pakistan dated 20 February 2019 notes that: DFAT is not aware of forced conversions between sects and that overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups (see Hazaras and Turis). DFAT assesses that high-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.

6. In respect to Turi the DFAT report sets out that:

   ·The Turi tribe is a Shi’a Pashtun tribe of around 500,000 people. 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.

   ·Deaths from terrorist attacks in Kurram Agency significantly increased in 2017. DFAT is aware of three attacks targeting Turis in Parachinar during the first six months of 2017, on the grounds of their Shi’a faith (see Shi’a):

   oon 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar;

   oon 31 March 2017 a suicide bomber attacked an imambargah in Parachinar; and

   oon 24 June 2017 two devices detonated in a market in Parachinar.

   The three attacks killed more than 120 people.

   ·However, operations Zarb-e-Azb, Radd ul Fasaad and associated counter-terrorism activities (see Security Operations) significantly decreased the number and severity of attacks on Turis. In the first quarter of 2018, the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children. This compares to community estimates that 200 Turis were killed and 1000 injured in 2017. DFAT is unable to verify these claims. Turis reported significantly fewer road attacks in 2018, as military operations have forced militants into the mountains. This has restored confidence within the community for individuals (although not large groups) to travel on the Tall-Parachinar road, although only between dawn and dusk. However, operations Zarb-e-Azb, Radd ul Fasaad and associated counter-terrorism activities (see Security Operations

   ·While military operations have improved the security situation in Parachinar and Kurram Agency, they have also restricted freedom of movement and limited the community’s access to essential services and trade opportunities. Military operations have also displaced many Turis, and some of the many who have since returned to their homes have faced extensive damage to property and crops.

   ·By February 2018, the Turi community estimated 40 per cent of military fencing in Kurram was complete, decreasing border permeability. Continuing security measures and tighter Afghanistan-Pakistan border controls also restrict movement. Turis also advise the military implements a 20 to 30 square kilometre area red zone for Parachinar, and a second, smaller red zone inside the outer red zone, in which markets and schools are located. Security forces have issued cards to access the red zones, which can be obtained by residents on presentation of identity documents (CNICs or passports).

   ·While minorities feel more protected, according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence (see Shi'a) and greater presence of the Taliban and Al Qaeda. Turis face some risk of violence while travelling by road to Iran and Iraq on religious pilgrimage, although DFAT understands the government provides security assistance for such journeys (see Shi’a). Turis also express concern that the civil war in Syria was spilling over into Kurram and that ISIL, based in Nangarhar, is getting stronger.

   ·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. DFAT is unable to verify this claim.

   ·Notwithstanding these difficulties, global Turi Shi’a networks and donation systems can assist Turis to relocate to other cities in Pakistan. Such support often relies on a senior male Turi advocate, limiting access for poorer members of the community, especially women and children. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of language barriers, notably Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi.

   ·The Parachinar government provides PKR 3 million (AUD 33,000) to families of government officials or military members killed in the line of duty, and PKR 300,000 (AUD 3,300) for civilians killed in the course of military operations. Members of parliament from the former FATA can face significant cultural pressure to provide financial assistance to constituents. Local sources say five orphanages in Parachinar are accessible to Turis and other ethnic and religious minorities.

   ·Preferred relocation options for Turis are Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of the language barriers they may face. Relocation to Khyber Pakhtunkhwa is not viable, as Turis are discriminated against, face security threats, do not have adequate access to services, and would likely be forced to sell assets. If forced to move to Khyber Pakhtunkhwa, Turis prefer to live in gated communities such as the Defence House Authority, however they will face security concerns and remain vulnerable. Abbottabad is considered slightly more secure within Khyber Pakhtunkhwa, but remains unsuitable from a risk perspective.

   ·DFAT assesses that Turis a face similar risk of official discrimination as other Pashtuns based on ethnicity (see Pashtuns), and no additional risk of official discrimination based on their religion (see Shi’a).

   ·Turis tend to live in enclaves with other Turis, mitigating societal discrimination. Outside these areas, Turis face a moderate risk of societal discrimination based on their Shi’a religion (see Shi’a) and historical animosity with the Bangash tribe.

   ·DFAT notes 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. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.

7. Reporting on the security situation in Pakistan generally, DFAT notes that the security situation is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Afghanistan. Overall, it is reported that there was a 29 per cent decline in the number of reported terrorist attacks in 2018 nevertheless Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups and ISIL affiliates conducted up to 171 of 262 reported terrorist attacks. The security situation varies across the country however and militant attacks can occur anywhere. Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh. While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018. DFAT reports 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 continues to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.

8. Regarding the history between the Pakistani Taliban and the Turi tribe, the BBC reported in October 2010 that “the Turi tribe are waging a war of attrition with the Taliban”. The report goes on to say that the Turi tribe has traditionally abhorred the Taliban and in 2008 the Turi fought a major battle with the Taliban.[2]

   [2] ‘The Pakistani tribe that is taking on the Taliban’, BBC News, 21 October 2010

9. The UK Home Office provides figures on the number of civilian casualties caught up in sectarian violence and notes that numbers vary according to different sources likely due to different methodologies on collecting dates. The report assesses that overall sectarian violence against Shias has declined since 2013. In general, the report concludes that 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 continue 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.[3]

   [3] UK Home Office, Country Policy and Information Note Pakistan: Shia Muslims, January 2019

10. Conversely the UNHCR reports[4] that the government has been criticized for failing to protect Shi’ite Muslims from attacks and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan. Despite efforts by regional authorities to provide additional security measures for Shi’ites in some situations the security situation for Shi’ites has reportedly not improved. Even where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites. Shi’ite individuals have held large protests to demand better protection and security from the authorities.

    [4] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious minorities from Pakistan, January 2017

11. The report goes on to state that militant groups, who are reportedly responsible for most of the attacks against Shi’ites in Pakistan, are the Ahl-e Sunnat Wal Jama’at (ASWJ), the Lashkar-e-Jhangvi (LeJ); Tehrik-e Taliban Pakistan (TTP) and the Jundullah, a group closely affiliated with the TTP. There has reportedly been an increase in sectarian violence targeting Shi’ite groups at least since 2012, with attacks primarily targeting ordinary Shi’ite individuals. Militant groups are reported to have used suicide bombers and grenade attacks in crowded Shi’ite areas such as schools, shopping areas and markets, as well as buses and other vehicles. They have reportedly attacked Shi’ite pilgrims travelling to and from Iran, and are reported to have attacked mosques, particularly during prayer times, as well as religious festivals. They have also reportedly targeted the killings of Shi’ite professionals and officials, including doctors, lawyers, politicians, prominent business people and local traders. The UNHCR considers that members of the Shi’ite 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.

12. DFAT also reports that:[5]

    ·journalists also self-censor reporting on sensitive religious issues, and Shi’a and other religious minority journalists experience similar pressure from security agencies as other journalists when reporting on topics of sensitivity, and additionally face religious based threats and harassment.

    ·While journalists in Pakistan face a high risk of official discrimination in the form of censorship pressure and harassment, and potential violence for publishing critical or sensitive articles, DFAT assesses journalists mitigate this risk to moderate levels through self-censorship. DFAT assesses journalists face a moderate risk of societal violence when specific groups (including militant and armed groups) deem their reporting unfavourable. DFAT assesses that people who post articles on social media criticising the security forces or armed groups face a moderate risk of official discrimination and societal violence.

    [5] Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 20 February 2019, p. 49-50

    FINDINGS AND REASONS

13. The tribunal accepts that the applicant is a Pashtun Shia Muslim from the Turi tribe who was initially raised in Parachinar but moved with his family to Rawalpindi when around [age] years old and attended school in Rawalpindi. The tribunal accepts that the applicant’s Pakistan identity card sates that he is of the Turi tribe. The tribunal accepts that much of his extended family still reside in Parachinar and that he and his family have spent periods of time visiting Parachinar over the years. The tribunal accepts that the applicant is identifiable as Pashtun Shia Turi by his official identification and by his accent.

    Does the applicant have a well-founded fear of persecution should he return to Pakistan?

14. The tribunal put to the applicant that there is a lack of country information in respect to forced conversions occurring against Shia to the Sunni sect. During the earlier hearing conducted by the previously constituted tribunal in 2016 this claim was found not be credible due to this lack of country information and for reasons of implausibility. The previous tribunal found it difficult to accept that an active Shia family would have succumbed to requests to convert. The applicant submitted that he and his family felt pressure because the situation for Shia was bad at the time and there were not many Turi in Rawalpindi which exacerbated their sense of insecurity. The previously constituted tribunal did not accept this would be a reason for the applicant and his family to cut themselves off from the Shia community. In the previously constituted Tribunal’s view further discrepancies in the evidence given by the applicant, when compared to that of his brother and further claims to fear harm such as due to his Shia community activities were not credible, in part because the overarching claim of forced conversion was not accepted as credible in the first place.

15. Upon the issue of the lack of country information in respect to forced conversions occurring against Shia to the Sunni sect being raised with the applicant in the presently constituted tribunal hearing the applicant submitted that the matter is not being reported. In light of the country information set out above in respect to the pressure exerted on the media and the Shia and other religious minority media, in respect to sensitive religious issues, the tribunal accepts that this may be occurring and not being reported. The applicant submitted that while Sunni militants can seek to injure or kill Shia, (which the previously constituted tribunal found was the highly likely documented outcome thus further undermining his claims of forced conversion), they may also seek to convert them. The tribunal accepts as plausible, in light of the totality of the country information before it, that members of a local Madrasa may seek to convert a local Turi Shia family should they become aware of their presence. The tribunal has verified the existence of the Madrasa in the area claimed by the applicant and notes it is located in the same area as the applicant’s home address in Rawalpindi.[6] On balance, and having considered the applicant’s evidence, in conjunction with the latest relevant country information with fresh eyes, the tribunal accepts that the applicant has come to the attention of local Sunni and has been subject to conversion pressures.

    [6] [Source deleted.]

16. Regarding contradictory evidence given by his brother in respect to his location the applicant submitted that his brother was not in the country at that time and had limited knowledge of his actual whereabouts. The applicant’s representative submitted that the previously constituted tribunal gave too much weight to the evidence of his brother because of this. The currently constituted tribunal acknowledges that the applicant’s brother was residing in Australia at the time of this evidence in respect to the location and activities of the applicant. The tribunal accepts the applicant’s representative’s submissions in this regard as reasonable and places little weight upon the contradictory evidence given by the applicant’s brother because he may well have had limited knowledge of the applicant’s activities at that time. Similarly the tribunal accepts the applicant’s evidence as reasonable that stress and the passage of time caused him to give contradictory evidence in respect to an attack he suffered from Sunni extremists on a motorbike in 2010 at the family shop (which caused the previously constituted tribunal to further doubt his credibility), and places little weight upon these cited contradictions as it has accepted the overarching premises of the applicant’s claims in this matter.

1. Based on the available information the tribunal acknowledges that incidences of sectarian violence in Pakistan have declined, however, attacks on Shias nevertheless continue to be reported across the country and there is evidence to support that anti-Shia extremists continue to have an active and hostile presence in communities throughout the country. Several sources, including DFAT, also suggest that there is likely to be ongoing religious intolerance and extremism in Pakistan. The tribunal accepts that this risk of serious harm is greater for the applicant than in comparison to an ordinary Turi Shia residing in Rawalpindi. This is because he has a profile with the Sunni community due to his interactions with the local Madrasa with questioned loyalties to the Sunni sect, his family’s ongoing proximity to the Madrasa and due to his brother’s past Shia activities (which resulted in him being granted asylum). For these reasons the tribunal accepts that his return to his home area would be noticed by local Sunni Madrasa attendees and this, together with his Turi ethnicity, which is disclosed on his identification card and may also be discernible from his accent and which the tribunal accepts is known of locally, may well result in his return being reported to Sunni extremists, either by locals who know of his past or new locals who identify him as a person of potential interest to extremists.

2. While the tribunal does not contend that all Pakistani Shia’s are at risk of serious harm, taking into account the applicant’s particular circumstances together with the longstanding hostility between the Turi and the Taliban and associated extremist groups which are operating across Pakistan, the tribunal finds that there is a real chance, which is not remote, that the applicant will be targeted because of the cumulative elements which make up his particular profile – his religion, his religious and community profile due to his past interactions with members of the local Madrasa and his brother’s past activities, his Turi ethnicity and his family’s specific location. The tribunal is satisfied that the applicant’s real chance of harm from extremists extends to the whole country given the relevant country information set out earlier in these reasons.

3. Having accepted there is a real chance the applicant would face serious harm in all areas of Pakistan, the Tribunal has considered whether he could access adequate protection from Convention based harm. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

4. DFAT reports that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socioeconomic factors at the individual level and political will. 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.[7]

   [7] Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 20 February 2019, p. 62

5. The abovementioned UNHCR report states that the government has been criticized for failing to protect Shi’ite Muslims from attacks and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan. Despite efforts by regional authorities to provide additional security measures for Shi’ites in some situations the security situation for Shi’ites has reportedly not improved. Even where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites. Shi’ite individuals have held large protests to demand better protection and security from the authorities.

6. In view of this information the tribunal finds that the applicant will be unable to avail himself of adequate protection from Convention based harm in the event he faces serious harm from extremists in Pakistan.

7. For these reasons the tribunal finds that the applicant has a well-founded fear of persecution in Pakistan should he return there now or in the reasonably foreseeable future for reason of his Shia religion, his Turi ethnicity (race) and/or active and imputed anti-Taliban political opinion.

8. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

9. The tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Paul Noonan
   Member