1725543 (Refugee)

[2018] AATA 2973

1725543 (Refugee) [2018] AATA 2973 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725543

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Jane Marquard

DATE:8 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 June 2018 at 10:10am

CATCHWORDS

Refugee – Protection visa – Pakistan – Religion – Shia – Particular social group – Educated professional – Fear of Sunni extremist groups – Fear of sectarian violence – Internal relocation – State protection – Economic circumstances – Credible witness – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Guo v MIEA (1996) 40 ALD 445
MIAC v SZQRB [2013] FCAFC 33
MIBP v MZZEV [2014] FCCA 22
MIBP v MZZGD [2014] FCCA 60
MZYXS v MIAC [2013] FCA 614
MZZAD v MIMAC [2013] FCA 879
MZZKJ v MIBP [2013] FCCA 1770
Ram v MIEA (1995) 57 FCR 309
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

SZSSM v MIBP [2013] FCCA 1489

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. The applicant claims to be a citizen of Pakistan. He was born in [year] in Hangu, Khyber Pakhtunkhwa province.

2. He first arrived in Australia on a [temporary] visa [in] June 2017. He applied for a protection visa pursuant to s.65 of the Migration Act 1958 (the Act) on 7 July 2017. In summary, the applicant claims to fear persecution from Sunni extremist groups in Hangu, his home region in Pakistan, because he is a Shia and an educated professional. He also fears generalised violence. He claims there is no state protection and it would be unsafe and unreasonable to relocate.

3. The application was refused by a delegate of the Department of Immigration and Border Protection (the Department) on 22 September 2017.

4. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).

5. The Tribunal has concluded that the decision under review should be affirmed. Set out below is a summary of the claims and evidence, and the findings and reasons.

   CLAIMS AND EVIDENCE

   Background information

6. About 20% of the population of Pakistan is Shia. The state is characterised by significant religious and sectarian diversity. Differences between Sunnis and Shias have their origins in Islamic history, but were ignited in the 1980s when President Muhammad Zia-ul-Haq prohibited Ahmadis from self-identifying as Muslims, which impacted on anti-Shia Sunni activity. The development of extremist Islamic and other militant groups since then has led to significant anti-Shia and other terrorist violence in regions of Pakistan.[1] Pakistan is a federal Islamic republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir. The FATA is comprised of seven tribal agencies: Bajaur, Khyber, Kurram, Orakzai, Mohmand, North Waziristan and South Waziristan.[2]

   [1] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,  15 January 2016

   [2] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

   Evidence before the Department

7. The applicant provided a copy of his Pakistani passport. The passport contained a visa for [Country 1], which expired [in] March 2018. The visa states ‘residence permit becomes invalid if bearer resides out of [Country 1] for more than 6 months’. Numerous educational documents and a copy of his [Country 1] driving licence were also provided.

8. A summary of the evidence provided by the applicant to the Department in his application forms, and supporting documents, and an interview on 15 September 2017, is set out below:

   ·He was born in [Village 1], Hangu, Khyber Pakhtunkhwa in [year]. Hangu has a relatively small percentage of Shias, less than 10%. The majority of the population are Sunni Muslims. There are about 30 Union Councils, and only one is Shia;

   ·He speaks Pashto, Urdu and English. He is a Pashtun and a Shia;

   ·His father, brother and sister are in Hangu and he has another brother in [Country 1] and an uncle in Parachinar. His mother passed away in 2013;

   ·He completed high school in Hangu in [year];

   ·He provided documents to evidence his study history. After high school, he studied for [Degree 1] but withdrew from this course in 2003. From 2003 to 31 December 2008 he lived in Islamabad;

   ·From 2005 to 2012 he completed [Degree 2] at [a foreign university]. In 2005 he received specialist training from [a foreign professional association];

   ·In 2009 he worked as [Occupation 1] in Islamabad;

   ·He lived in [Country 1] from 2011 to 2017. During this time he returned home on five occasions for three to four weeks at a time. In 2013 he was in Hangu from March to May after his mother passed away. In 2015 he returned to Hangu for three weeks to get married;

   ·From [October] 2011 to [January] 2014 he was a partner in a company importing and exporting [goods] from [Country 2] to [Country 3]. The company was based in [Country 1];

   ·From [January] 2014 to [June] 2017 he was working in [Country 1] as [Occupation 2];

   ·He ‘currently has a visa for [Country 1]’, but does not have the right to enter and reside in any other country;

   ·He was married [in] April 2015 (certificate provided). His wife is living in Hangu with their [son]. They are living with his father, sister-in-law and nephew. They have not experienced any difficulties from Sunni extremist groups;

   ·[Country 1] has cancelled visas of Pakistan Shias in [Country 1] and he fears being returned to Pakistan, where he has a fear of persecution;

   ·He fears harm from Sunni extremist groups such as Tehreek-e-Taliban (TTP), Lashkar-e-Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP) and Ahle-Sunnat–Wal-Jamaat (ASWJ). Hangu has been attacked many times;

   ·He fears persecution in Hangu because he is a Shia from the Banga tribe. Shias have suffered harm such as being kidnapped, killed and or physically harmed, including in suicide attacks. He fears suicide attacks while worshiping or travelling. His cousin, [was] kidnapped when travelling and there are many cases of Shias being killed while travelling in Khyber Pakhtunkhwa. His cousin was released with the help of local authorities and tribal elders. He believes that his cousin was targeted as he was educated and [well known] in the community. Shias have been taken off buses and killed. People will know he is Shia by the way he prays, the mosques/imambargahs that he attends and his religious ideology and beliefs in discussion;

   ·He has had to conceal his religion for reasons of employment prospects, to avoid discrimination and manage personal safety;

   ·He is part of a local group which manages and co-ordinates Shia religious processions;

   ·He also fears harm as an educated and professional Shia, as this category of person has been targeted. He fears being kidnapped as the Taliban kidnap Shias on a regular basis. His neighbour was kidnapped in 2010 along with another man, and other villagers were kidnapped at various times;

   ·He also fears generalised violence in Pakistan. He cannot go beyond [a market] due to danger in the area;

   ·Authorities are unable to protect Shias from Sunni extremism;

   ·In 1988/9 there was a fight between Shia and Sunni sects and a Shia procession was targeted. He could not go to school for [days] due to sectarian conflict;

   ·In 2001 his village was surrounded by Sunnis who came from [other districts], and local Sunnis. They bombarded his [village] with [a variety of] weapons;

   ·In 2006 during Muharram, his village was fired on for [hours] [by a large group of] attackers. Around [number] missiles were fired. His uncle and other local Shias were killed and another relative was [paralysed]. The applicant was in the village at the time as he had returned from studying in Islamabad for Muhurram. It was terrifying. The Sunnis used [specific tactics] as they had height over the Shias. There was also a bomb blast and a villager was killed. There were no weapons in his village and they could not defend themselves;

   ·In 2009 Hangu was bombarded from every side during Muharram. The applicant was [kilometres] away and could hear it. His village was also attacked;

   ·[In the first few months of] 2014 there was a suicide attack on a [public building near] the applicant’s home;

   ·He could not relocate as there is a chance of harm throughout Pakistan and it would be unreasonable for him to relocate as he has a wife and child. He has no family or friends outside Hangu. He could not subsist in Islamabad. [Occupation 2] makes [up to] PKR [amount] per month in Islamabad/Rawalpindi. The cost of a two bedroom apartment in the Shia area is [the same amount] per month. It is also not safe for Shias. There have been targeted attacks against Shias, Shia mosques and imambargahs and processions. He could not relocate to Lahore or Punjab. There is harassment and discrimination against Pashtuns by Punjabis including from the police. There are areas where Pashtuns cannot rent property. There are threats and harm against Shias. He could not relocate to Karachi as he is a Shia and Pashtun, and there have been many attacks against Shias in Karachi recently.

   Departmental decision

9. A delegate of the Department, in a decision dated 7 July 2017, did not accept that there was a real chance of serious harm if the applicant were to return to Pakistan in the reasonably foreseeable future. The delegate noted that he had returned to Hangu while living in [Country 1] on five occasions and that his family living in Hangu had not suffered any harm.

   Evidence before the Tribunal

10. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. The applicant indicated that he was satisfied with the interpreter. The applicant was represented. A summary of the evidence provided by the applicant to the Tribunal in hearing and supporting documents, including submissions on 21 February 2018, is set out below:

    ·The applicant’s village, [Village 1] in Hangu, Khyber Pakhtunkhwa is a [Shia] village with a population of about [number]. The village is surrounded by [mountains]. On one side of the mountains is [location]. People harvest wheat but currently are not farming because of lack of water. Farmers have livestock as well, such as cows. There are Sunni communities [number] kilometres away from the village;

    ·He grew up in the family home with his parents, two brothers and one sister. His father worked in [foreign City 1], as [Occupation 3]. His mother looked after the children;

    ·Both of his brothers are living in [City 1]; one is in the [service] business and the other is [in another occupation]. His sister is living in [Village 1] and she is not married. His father does not work now, and his mother has passed away. He has a cousin and other relatives in the village, and other cousins in [City 1]. His grandmother lives in Parachinar with some of his relatives;

    ·In the Hangu region generally, about 10% or less of the population are Shia. There are many councils and only a few are Shia. The Shia live in particular villages and parts of the city;

    ·He has a wife and son aged [number], who are living in the village with the rest of his family in the family home. His wife’s family live in the village as well;

    ·His family are religious, as are the majority of the people living in the village. For example, they observe Muharram and undertake religious processions. They use chains and knives and practise self-flagellation and beating. They also celebrate Eid, and other festivals. The applicant learned the traditions from the family and other families, from reciting the Koran and also attending mosque and learning from imams. There were many mosques nearby;

    ·He was not a member of any Shia groups and had no political affiliation. He was involved with an organising committee for Muharram. The role of the committee was to maintain security to prevent other people from entering the village. They had meetings to identify each person’s role. It was only prior to leaving for [Country 1] when he had this role;

    ·He completed high school in Hangu city in [year], about [number of] kilometres away from his home. When he finished high school, he commenced [Degree 1] at [a] University but withdrew from this course in 2003 as he wanted to study [another subject], so he started  [a] course in Islamabad. Islamabad is about [number] kilometres away from his home. He lived in hostels and did not know anyone in the beginning, but made friends there. He stayed there for about five years, studying. In 2009 he worked in a [firm] for about nine to 10 months. From [year] to [year] he completed [Degree 2]. In 2005 he received specialist training from [a professional association]. He did this through a college in [City 1], but in his earlier years he was in Islamabad;

    ·He had a job in Islamabad but left there to go work in [City 1] because his brother recommended it. He went to [City 1] for three months twice to search for a job. He then found a job as a partner in an export and import company in October 2011. He was there setting up the operational aspects of the company, importing and exporting [goods] from [Country 2] to [Country 3]. He worked there from [October] 2011 to [January] 2014;

    ·He had a working visa in [Country 1] for two years, which was renewable automatically. That visa allowed him to work, rent accommodation and access services such as health care. He agreed that, as reported in independent country information, many Pakistanis stay indefinitely in [Country 1] by continually renewing these working visas;

    ·From [January] 2014 to [June] 2017 he moved jobs because of salary. He was then working in [Country 1] as [Occupation 2] for a [company]. He was there for a few years until June 2017 but had issues in the job. He could not say he was a Shia in [City 2], as they might make him leave as they deported many Shias. He looked for many jobs in [City 1] but could not find any. It was difficult to stay there because of his religion, so he travelled to Australia;

    ·His company sponsored him to attend a [seminar] in Australia. He travelled as a visitor to the seminar. He stayed in Australia because he found it difficult to practice his religion in [City 1] and he wanted to practise his religion freely. Also there are many problems in his home region, which is a risky place to live;

    ·During the time he was living in [Country 1] he returned home on five occasions for three to four weeks at a time, while he was on vacation. In 2015 he returned to Hangu for three weeks to get married;

    ·There are many insurgent groups in his area. In 1999, [a large number of] people from many different groups attacked his village. The motivation was mainly Muharram, as there was a gathering at that time. He was at home and there were many mortars. Young men defended the village and died. In 2001 there was another attack on the village when many mortars were fired. Asked if he could recall any further details about the experience, he said that there were mortars and rockets fired on their village.  The security situation was very bad and they could not go to school. There were some other attacks possibly in 2001 or 2006. Asked if the extremist groups impacted on life at all in other ways, he said that there was always a lot of fear, particularly when going to school;

    ·A neighbour, well-known to his family, was abducted in around 2015. He was a village [senior] – the [senior] of the Muharram committee. He was abducted because he was Shia. He was tortured and released after the military operations in the region;

    ·The applicant and members of his family were never specifically harmed by any of the terrorist groups in his home region;

    ·He was not threatened by any militant or terrorist groups while living in Islamabad, but was in fear because of his religion;

    ·Asked why he fears returning to his home region now, he said that he may be abducted, and life for educated people is difficult. Militants killed a teacher a few days prior to the hearing and also killed a shopkeeper. It is difficult for educated people in that area, as the extremist groups do not want them to progress, and if people are working in an office they are targeted;

    ·His cousin was abducted about three years ago because he was educated and was working for [a government organisation] in Hangu. He was abducted from the Hangu [area] in the late evening. He does not know if it was random or if he was targeted. He was released after some time with the help of police;

    ·He fears many groups in his area such as TTP, LeJ, SSP and ASWJ. LeJ and SSP are the most powerful;

    ·[Country 1] has cancelled visas of Pakistani Shias in [Country 1] and he fears being returned to Pakistan from [Country 1], where he has a fear of persecution. There are many people deported, including some of his friends. This started in 2011 and went on to 2016. People cannot say openly that they are Shia. The Tribunal put to him that there are a large amount of Pakistanis living in [Country 1] and presumably a large proportion of them are Shias. He said that people have been deported from most city centres except for [City 1]. In [City 1] they are more flexible. He said that he can practise his religion in [City 1] but not [City 2]. He travelled to [City 1] during Muharram because of this;

    ·The Tribunal said that there were many media articles about Shias being deported about 2012/13 but not currently, and asked if he had evidence of recent deportations. He said there are few Shia people there now, and they are not exposing themselves. In 2015 he was working in [City 2] when one of the senior managers was deported with three days’ notice;

    ·He was asked if he suffered any discrimination or other problems for being Shia, besides fear of terrorist attacks. He said that it is difficult being Shia as there is subtle discrimination in the job market;

    ·The Tribunal discussed the refugee criteria with the applicant, in particular that there must be real chance of persecution, and that persecution must be systematic and discriminatory, rather than generalised violence. The Tribunal also discussed recent country information which indicates a decline in violence in Khyber Pakhtunkhwa. The applicant commented that the reports are true to a large extent. However he is not talking about terrorist activities; he is talking about sectarian activities. The shopkeeper, who was killed three days prior to the hearing, was in a village close to him, as was the teacher. These people were not high profile. They were just normal people going about day to day activities but the attacks were not random; they were systematic. The realities on the ground are different to information provided in reports found on Google. The information he relies on is from Shia news, whereas some of the incidents are not being reported on mainstream media. Shias are under constant pressure. The government has not been able to provide any answers. The general violence, such as suicide attacks, has declined, but not the genocide of Shias;

    ·The Tribunal questioned the applicant about how his family is able to live in the region without incident, and how he could return five times without incident. He said that the women stay at home and are not in danger as much. He could return home without any incidents of harm because he stayed at home and was not working, and thus was not targeted;

    ·The Tribunal also discussed with the applicant whether the real chance of persecution relates to all areas of Pakistan and whether it would be reasonable for him to relocate to an area of the country where there would not be a real risk that he would suffer significant harm. He was asked if he could not move to one of the Shia areas where he would be safe from the extremist groups he fears, as Pakistan is a large country with many different Shia areas. He was asked particularly about Shia areas in urban centres such as Islamabad or Lahore where could be free from violence. He responded that imambargahs in Islamabad are close to Sunni mosques. The mosque closest to them has an imam inviting people to join ISIS, thus there is fear of harm everywhere;

    ·He said that he would only earn PKR [amount] per month as [Occupation 2] in Islamabad. He said that it is difficult for a man to earn enough to pay for dependents. He said that it would be difficult for him to survive if he moved to Islamabad. He could not relocate as there is a chance of harm throughout Pakistan and it would be unreasonable for him to relocate as he has a wife and child. He has no family or friends outside Hangu and it is not safe for Shias. There have been targeted attacks against Shias, Shia mosques and imambargahs and processions. He could not relocate to Lahore or Punjab. There is harassment and discrimination against Pashtuns by Punjabis including from the police. There are areas where Pashtuns cannot rent property. There are threats and harm against Shias;

    ·He provided references to web articles about the death of the Shia teacher in Kohat in March 2018, as well as the murder of a student in Rawalpindi.

    Independent country information

1. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the assessment section below.

   ASSESSMENT OF CLAIMS AND EVIDENCE

2. In coming to a decision the Tribunal has taken into account evidence before the Department and this Tribunal, as summarised above, as well as independent country information.

3. A summary of the relevant law and an extract of the legislation are set out in an attachment to this decision.

4. The issue in this case is whether the applicant meets the refugee criterion, and if not whether he is entitled to complementary protection.

5. The assessment of the claims and evidence is set out below.

   Nationality

6. The applicant provided a copy of his passport and gave evidence that he was a citizen of and born in Pakistan. It was clear that he was familiar with the culture, history and geography of Pakistan, and the Tribunal accepts on the evidence before it including his personal particulars, that he is a citizen of Pakistan, and that Pakistan is the receiving country for the purposes of the provisions.

   Findings of fact

7. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, anxiety about the outcome, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings. The Tribunal has also utilised the published guidelines of the Administrative Appeals Tribunal in relation to credibility.[3]

   [3] AAT - Migration & Refugee Division, Guidelines on the Assessment of Credibility July 2015

8. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v MIEA (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

9. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).

10. Taking all these matters into account, the Tribunal found the applicant to be a credible witness, who did not attempt to embellish evidence. His evidence was consistent in the accounts before the Department and Tribunal and his experiences and evidence generally accord with independent country information.

11. The Tribunal is satisfied on his evidence and documents provided, that the applicant is a Shia man who comes from a village near Hangu in Khyber Pakhtunkhwa province. The Tribunal is satisfied that the applicant lived in Islamabad for five years before moving to [Country 1] for work from 2011 to 2017. According to Pakistan’s Minister for Overseas Pakistanis and Human Resources Development, more than 3.4 million Pakistanis moved abroad for employment purposes in the five years to 2015, including around [number] to [Country 1] and 160,000 to Saudi Arabia.[4] The Tribunal is satisfied from oral and written evidence that the applicant has qualifications as [Occupation 2] and has worked in this profession.

    [4] [Source deleted]

12. The Tribunal is satisfied that in 1988/9, as reported by the applicant, that there was a battle between Shia and Sunni sects in his region, and a Shia procession was targeted, and the applicant could not go to school for [days] due to the sectarian conflict. These incidents are reported in independent sources.[5]

    [5] South Asia Terrorist Portal,  ‘Major incidents of terrorist violence in Pakistan, 1988-2007’ (undated),  Bangash, Z. ‘Picturesque Hangu valley turned into killing field’, 1998, Muslimedia International website,

13. The Tribunal is also satisfied on his evidence, including compelling evidence of the fear that residents felt, that in 2001 the applicant’s village was surrounded by Sunnis who came from [other districts], and local Sunnis. They bombarded his [village] with [a variety of] weapons. Violence in the region is reported on in various sources.[6]

    [6]  [Source deleted]

14. The Tribunal is further satisfied that in 2006 during Muharram, his village was fired on for [hours] [by a large group of] attackers. Around [number] missiles were fired. The Tribunal accepts on his oral evidence that his uncle and other local Shias were killed, and another relative was [paralysed]. The Tribunal accepts that the applicant was in the village at the time as he had returned from studying in Islamabad for Muhurram. The Tribunal accepts his evidence that there were no weapons in his village and they could not defend themselves. There are numerous reports about the violence in Hangu in 2006 in which a bomb went [off]. [One source] stated that a firefight killed [several] Shias [and] other violence killed [a number] during the previous day.[7]

    [7]  [Source deleted.]

15. The Tribunal is also satisfied that in 2009, Hangu was bombarded from every side during Muharram, and that the applicant was [kilometres] away and could hear it. The Tribunal accepts that his village was also attacked. This is reported in country sources.[8]

    [8] See for example, South East Asian Terrorism Portal, ‘Sectarian violence in KP 2009’,

16. The Tribunal is satisfied on the basis of the applicant’s evidence that the applicant’s cousin was working for [a government organisation] in Hangu, and was kidnapped about three years ago when travelling, and released with the help of local authorities and tribal elders. The Tribunal is also satisfied that his neighbour, who was a village [senior], was kidnapped in 2015. The applicant was able to recall and describe these incidents with the kind of detail often commensurate with telling the truth.

17. The Tribunal is also satisfied that [early in] 2014 there was a suicide attack on a [public building near] the applicant’s home. A number of sources report this [event]. [Information deleted] [9]

    [9]  [Source deleted.]

18. The Tribunal is satisfied that the applicant is part of a local group which managed and co-ordinated Shia religious processions. He was able to convincingly describe the activities and functions of this group.

    Refugee criteria – is there a well-founded fear of persecution?

19. A person is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.

20. The concept of ‘well-founded fear of persecution’ is further defined in the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

    ·the real chance of persecution relates to all areas of a receiving country.

21. The Tribunal is satisfied that the applicant fears being persecuted for reasons of his Shia religion, and that there is a real chance that, if he returned to his home region in the reasonably foreseeable future, he would be persecuted for his religion. The reasons for this are set out below.

22. Firstly, despite the fact that sources indicate that there has been a reduction in levels of sectarian and terrorist violence overall in Pakistan, as well as in Khyber Pankhtunkhwa, as discussed below, there is evidence of significant targeted violence against Shias in his particular region.

23. A recent South Asia Terrorism Portal assessment, in examining reductions in violence in 2017 and the first quarter of 2018 has stated that:

    The relative respite from terror through 2017 was primarily due to Operation Radd-ul-Fasaad (Elimination of Discord), launched by the Pakistan Army across the country on February 22, 2017. On December 18, 2018, Major General Sahir Shamshad Mirza, Director General of Military Operations (DGMO), briefing the Senate on action taken by SFs under Operation Radd-ul-Fassad, disclosed that 17,685 operations had been conducted across Pakistan: 13,011 in Punjab; 2,015 in Sindh; 1,410 in Balochistan; and 1,249 in Khyber Pakhtunkhwa (KP) and the Federally Administered Tribal Areas (FATA).[10]

    [10] South Asia Terrorism Portal, Pakistan: Assessments – 2018, >

    The Khyber Pankhtunkhwa region has seen a reduction in violence in recent years, referring to it as ‘low level’. According to the most recent Department of Foreign Affairs and Trade (DFAT) Report in 2017:

    As is the case in most parts of the country, Khyber Pakhtunkhwa has seen a significant reduction in militant violence in recent years. According to the SATP, 58 people died in terrorism related incidents, including sectarian attacks, in Khyber Pakhtunkhwa in 2016, compared with 382 deaths in 2013, with only one sectarian-related death of a Shia man recorded in the first five months of 2017 (in Dera Ismail Khan). According to the Centre for Research and Security Studies (CRSS), 13 people died in sectarian violence in Khyber Pakhtunkhwa during 2016. This includes two separate incidents on 5 May 2016 in Dera Ismail Khan, where unidentified militants on motorcycles shot and killed four members of the Shia community, including a schoolteacher and two lawyers..

    Overall, DFAT assesses that there is a low level of sectarian violence in Khyber Pakhtunkhwa in the context of a moderate level of militant and criminal violence across the province.[11]

    [11] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

24. The European Asylum Support Office (EASO) report on security in Pakistan in 2017 provided some recent history on the situation in Khyber Pakhtunkhwa generally and reported on a slight increase in violence but a decrease in fatalities in 2016 (quoted below without referencing):

    In 2009, the Pakistani Army engaged in a series of military operations against the TTP in Khyber Pakhtunkhwa.. The local Taliban in the province went underground and continued its activity in large parts through terrorist attacks and targeted killings. According to Radio Pakistan in December 2016, operation Zarb-e-Azb contributed to more security in the province ..

    PIPS stated that the TTP carried out most of the terrorist attacks in the province of Khyber Pakhtunkhwa, followed by the local Taliban and JuA. The TTP attempts to re-establish its network in the area of Swat. PIPS mentions a slight increase in attacks carried out by the local Taliban in the province. According to PIPS this indicates ‘a growing level of radicalism and recruitment, as such groups manage these attacks on their own’. There are reports that members of IS are hiding among the general population in Khyber Pakhtunkhwa. Members of IS operate in Peshawar and are present in the settled areas of the province. They try to recruit people from various TTP factions..

    According to PIPS, the number of deaths from violent incidents show a slight upwards trend in 2016 compared to 2015. According to PIPS and PICSS, the number of injured increased significantly in 2016. On the other hand, CRSS documented a 20 % decline in fatalities from violence, down from 441 in 2015 to 357 in 2016.

    CRSS reports a decrease in the number of fatalities among civilians, militants and security forces in 2016 compared to 2015. SATP recorded 213 fatalities in 2016, including 123 civilians, 50 security forces personnel and 40 militants, a slight decrease compared to 2015. According to PICSS, 174 people were killed, including 80 civilians, and at least 386 were injured, of which 291 were civilians.[12]

    [12] EASO, 2017, Pakistan Security Situation 2017, >

    EASO also reported on kidnappings as follows, ‘[a] significant decline has been observed in kidnapping during 2016. The number of kidnapping incidents dropped by 47 percent. Overall, 17 such incidents were recorded during last year while in 2015 the number was 32. Kidnapping was one of the major source of income for militants. However, Operation Zarb-e-Azb and intelligence based operations in urban areas dismantled kidnapping for ransom networks largely. 34 people were kidnapped in 2016 by militants’.[13]

    [13] EASO, 2017, Pakistan Security Situation 2017, >

    Notwithstanding some general reductions in the violence in the country and the applicant’s province as referred to above, in regards to the situation in the applicant’s village and surrounding areas, the Tribunal is satisfied that the applicant’s home region has been subject to numerous violent attacks against Shias. His village, [Village 1], as well as the [city of Hangu] has been the location of historical and recent sectarian violence.   The Tribunal notes that, according to [a media outlet]:

    [Paragraph deleted.][14]

    [14] C:\doc-conversion\inputToHtml\[Source[Source deleted.]

25. An article titled ‘Sectarian Violence in Hangu: Genesis, Factors and Remedies’ states that sectarian violence had struck the city five times since 1980. The author suggests that there are many factors at play, including fanaticism of tribesmen and the use of religious processions, loudspeakers at mosque and similar religious conduct which ignites the opposition. The author also points to lack of state interest and protection, the involvement of the Afghan Taliban and other local and international factors.[15]

    [15] Rau, A and Ullah, F, ‘Sectarian Violence in Hangu: Genesis, Factors and Remedies’, Central Asian Journal, Summer 2013

26. A number of sources have reported on kidnappings and murders of Shias which have taken place in Hangu. One article in 2014 states that ‘incidents of kidnappings have recently been on the rise in [Hangu]’.[16]

    [16] ‘Cases on the rise: Man kidnapped in Hangu’, The Express Tribune, 14 September 2014, >

    Articles refer to the Kohat-Hangu road being the site of violence.[Sentence deleted]. In 2016 a report stated that army troops were deployed to the road during Muharram to ensure peace and security due to threats from ASWJ and its sister wing LeJ.[17]

    [17] ‘Threats from Deobandi Takfiri ASWJ forces admin to call in army in Hangum’, Shiite News, 22 February 2015

27. Recent reports have indicated that there are targeted attacks on individual Shias in the region. In February 2018 a high school teacher was shot on his way to school, and in September 2017, a Union Council general councillor was shot dead.[18]

    [18] ‘Teacher shot dead in Hangu’, The News 2 February 2018,

28. The Tribunal is satisfied that ISIS has also threatened to target people in the Hangu area through distribution of pamphlets.[19]

    [19] Shahid, S, ‘IS distributes pamphlets in Kurram Agency’, Pakistan Today 8 February 2017, >

    The South Asia Terrorism Portal lists numerous arrests and attacks in the region.[20]

    [20] South Asia Terrorism Portal, Institute for Conflict Management, Khyber Pakhtunkhwa Timeline, 2015, >

    The Tribunal is satisfied on the basis of these reports that Shias have been targeted in his home region, and that this is because of religion and/or ethnicity.[21]

    [21] See for example, Rau, A and Ullah, F, ‘Sectarian Violence in Hangu: Genesis, Factors and Remedies’, Central Asian Journal Summer 2013

29. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance.[22] It is clear from the Explanatory Memorandum to the Bill introducing s.5J, which applies in this case, that Parliament intended that this same threshold be used to assess claims under s.5J.[23]

    [22] (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9

    [23] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.171 at [1180]

30. The Tribunal is satisfied, considering the independent country information cumulatively, that there is a real chance (more than a remote or unforeseeable chance) of serious harm were the applicant to return to his home village or surrounding areas in the reasonably foreseeable future. His village is Shia, but surrounding areas are Sunni, and he has spoken of how there are only a few Shia councils, and the others are all Sunni. This accords with country information about Hangu:

    The population of Khyber Pakhtunkhwa is mostly Pashtun and predominantly Sunni. The Shia population is largely concentrated in Hangu, Kohat, Peshawar and Dera Ismail Khan. Most Shia in Peshawar are long-term residents of the Old City, while many Shia in Hangu, Kohat and Dera Ismail Khan are Turi or Bangash Shia from Kurram and Orakzai agencies…[24]

    [24] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

31. Despite evidence of a reduction in violence in Pakistan and his province generally, it does appear from the information that his region has been the site of numerous sectarian clashes, and that Shia individuals from his region, including recently a councillor and teacher, have been targeted for killings and kidnapping. Further, a number of people close to him have been the victim of sectarian attacks, including an uncle. A cousin and a neighbour were kidnapped, and there is evidence of a significant amount of kidnapping in the area. The applicant’s village is [located] on a mountainous road, with [Sunni] villages nearby. The Tribunal is satisfied that there is a real chance that the applicant, as an educated Shia with professional qualifications, would be targeted for serious harm, given that other professionals have been targeted. Further, he has traditionally been involved in Muharram planning and activities, and for this reason he may be more noticed than other Shias were he to return to his village in the reasonably foreseeable future.

32. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a).

33. In Applicant A v MIEA, Gummow J cited Ram v MIEA (1995) 57 FCR 309 with approval and added that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. The reason for the persecution must be found in the singling out of one or more of five attributes.[25]

    [25]Applicant A v MIEA (1997) 190 CLR 225 at 284, per Gummow J

34. The Tribunal is satisfied that the applicant’s religion and/or ethnicity would be the essential and significant reason for the persecution, given the country information referred to above.

    Refugee criteria – does the real chance of persecution relate to all areas of Pakistan?

1. A person only has a well-founded fear of persecution if the real chance of persecution relates to all areas of the country.

2. The applicant has submitted that there is a real chance of serious harm throughout Pakistan. He submitted that there had been targeted attacks on Shia mosques, imambargahs and processions across the country, including in Karachi.

3. The Tribunal accepts that the applicant is a practising Shia and could be recognised as such wherever he lived in Pakistan. According to the UNHCR, the groups most responsible for sectarian attacks on Shias are SSP, LeJ, TTP and Jundallah, a group associated with TTP. The report states that there have been various attacks on Shia communities and ‘in light of the foregoing, UNHCR considers that members of the 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.’[26] DFAT emphasises that the greatest threat to Shias is from sectarian violence, although Pakistan military operations against terrorist groups have substantially reduced the level of violence throughout the country. According to DFAT, sectarian attacks have historically targeted individuals, places of worship, shrines and religious schools. DFAT suggests that although all groups have been affected, Shias represent a higher proportion of those attacked and killed.[27]

   [26] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of members of the religious minorities from Pakistan, January 2017, Department of Foreign Affairs and Trade, DFAT Thematic Report: Shias in Pakistan, 15 January 2016

4. The DFAT Report suggests that while there are threats from sectarian and other violence, the level of this violence varies across the country:

   Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The security situation varies across the country. While militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. Sindh province is also relatively free from major terrorist activity outside of Karachi, although rural Sindh has a high incidence of crime and kidnapping and some large-scale terrorist attacks have occurred in rural Sindh. Gilgit-Baltistan tends to experience less sectarian violence, in part because of its relatively sparse population and mountainous terrain, and its status as the only Shia-majority area in Pakistan. In contrast, Balochistan, Khyber Pakhtunkhwa and the FATA experience relatively higher rates of militant and sectarian violence. .. Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools. Shia continue to face a threat from anti-Shia militant groups, including Lashkar-e Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP, also known as Ahl-e-Sunnat-Wal-Jamaat or ASWJ), and various factions of the Tehreek-e-Taliban Pakistan (the Pakistani Taliban, or TTP).[28]

   [28] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

5. The DFAT Report notes that despite overall reduction in violence across the country:

   militant groups remain active across Pakistan, despite their more limited access to former safe-havens in Khyber Pakhtunkhwa and North Waziristan.

   These groups continue to attack government and sectarian targets. Groups such as the TTP have splintered into several offshoot organisations; while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats.[29]

   [29] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

6. Notwithstanding these security concerns across the country, the Tribunal is not satisfied that the real chance of serious harm relates to all areas of the country. The reasons are set out below.

7. Firstly, DFAT assesses that there is a low risk of sectarian violence against Shias in general, particularly those who have a low profile. As discussed, there has been a significant improvement in the security situation since 2014 following the commencement of Operation Zarb-e-Azb and the introduction of the 20-point National Action Plan to counter terrorism. The South Asia Terrorism Portal, in assessing the first quarter of 2018, found that since the beginning of 2018, at least 150 terrorism-related fatalities (46 civilians, 51 Security Force (SF) personnel and 53 terrorists) have been recorded across Pakistan (data current as at 8 April  2018). In the corresponding period of 2017, the country recorded 449 terrorism-related fatalities (184 civilians, 55 SF personnel and 210 terrorists).[30] The assessments for 2017 and the first quarter of 2018 found that the significant reductions in terrorism violence was primarily due to Operation Radd-ul-Fasaad (Elimination of Discord), launched by the Pakistan Army across the country on 22 February 2017.[31]

   [30] South Asia Terrorism Portal, Pakistan: Assessments – 2018,  South Asia Terrorism Portal, Pakistan: Assessments – 2018, >

   The weight of the country information appears to support DFAT’s assessment that there is a low risk of sectarian violence for most Shias in Pakistan generally, although there are some regions where it is dangerous. DFAT assesses that there is a moderate risk of sectarian violence for prominent Shias such as high-profile professionals. Reports including the DFAT Thematic Report on Shias did state that in 2015 there were attacks which included targeted killings of high profile Shias such as doctors, lawyers, teachers and professionals.[32]  However, the Tribunal is not satisfied that the applicant would be targeted as a high profile professional in other regions of Pakistan. The Tribunal does not accept that he has a high profile or would in the reasonably foreseeable future, as he has been out of the country and had no public profile since 2011. He would not be known outside his own region. Furthermore, even if he did work as [Occupation 2], if he lived in the safer areas referred to below, attacks on Shias have reduced in number. The DFAT Report states that:

   Sectarian violence has reduced significantly in recent years, particularly since Operation Zarb-e-Azb (and its successor, Operation Radd ul Fasaad) and the NAP were implemented. According to the Center for Research and Security Studies (CRSS), fatalities from sectarian violence fell by 20 per cent in 2016, following a 28 per cent drop in 2015 and a 32 per cent drop in 2014.

   While sectarian violence affects people of all religions and sects, Shia have traditionally represented a higher proportion of the casualties. According to the CRSS, Shia made up around 60 per cent of the people killed in sectarian violence in Pakistan in 2015, despite making up only around 15-20 per cent of Pakistan’s population. In 2016, however, Shia made up fewer than 15 per cent of those killed in sectarian violence. The two biggest attacks of the year—an attack targeting Christians in Lahore on Easter Sunday and an attack on a Sufi Shrine in Balochistan— did not target Shia. This fact, combined with a significant decrease in overall sectarian violence across the country, meant that Shia comprised a relatively small proportion of the total victims of sectarian violence. Around 820 Shia have been killed in sectarian violence since the beginning of 2013, out of a total Pakistani Shia population of about 30 million people..

   The LeJ has claimed a number of attacks on the Shia community in recent years, particularly Hazaras in Quetta and other Shia groups in the Federally Administered Tribal Areas (FATA) and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shia and Hazara Shia’. Several prominent LeJ militants were killed in 2015, including the group’s leader Malik Ishaq. LeJ’s activities have been somewhat curtailed since the beginning of Operation Zarb-e-Azb and the NAP, although the group claimed to be involved (directly or indirectly) in several attacks in late 2016 and early 2017..

   Overall, DFAT assesses that most Shia in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups. High-profile Shia face a moderate risk of violence, as they are more likely to be targeted. Shia are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure. [33]

   [32] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,15 January 2016

   [33] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

8. The total number of attacks on Shias specifically is not large when considering the size of the Shia population; around 15-25% of Pakistan’s very large population of 190 million are Shias. In the first quarter of 2018 the South Asia Terrorism Portal has reported 150 terrorism fatalities, across the country, with 53 of those terrorists themselves and 51 security force personnel. Further:

   Through 2017, Pakistan had recorded a total of 1,260 fatalities, including 540 civilians, 208 SF personnel, and 512 terrorists in 2017; as against 1,803 fatalities, including 612 civilians, 293 SF personnel, and 898 terrorists in 2016.

   The number of major attacks (involving three or more fatalities) and the resultant fatalities, fell from 172 and 1,369, respectively in 2016, to 132 and 1,047, respectively, in 2017. In the current year, 17 major incidents have already been recorded, resulting 90 fatalities.

   The number of sectarian attacks also declined from 35 in 2016 to 16 in 2017. However, the related deaths from such incidents marked a 68.61 per cent increase, from 137 in 2016 to 231 in 2017. The most deadly sectarian attack in 2018 came on February 16, when a suicide bomber attacked the crowded Sufi shrine of Lal Shahbaz Qalandar in Sehwan Sharif town of Jamshoro District in Sindh, killing at least 88 people and injuring 343 others. It was the worst attack, in terms of fatalities, recorded in Pakistan since the December 16, 2014, Army Public School (APS), Peshawar, attack, which had claimed 150 fatalities, including 143 civilians.[34]

   [34] South Asia Terrorism Portal, Pakistan : assessments 2018, >

   Further, other information indicates that it is primarily security forces and police who have been targeted, as well as government infrastructure. According to EASO, of the total reported terrorist attacks in 2016, 211 attacks were against personnel, convoys and check posts of the security forces and law enforcement agencies across Pakistan. Most of these attacks targeted the police. Civilians were the targets of 89 attacks (20%). A total of 34 attacks (8%) had sectarian targets, mainly members of the Shia and Sunni communities and places of worship including mosques and shrines. Forty-one attacks were aimed at political leaders and workers while 27 attacks targeted tribal elders. Attacks the previous year included state installations such as gas pipelines, power pylons and railways, government officials (65 attacks), polio health workers (four attacks), educational institutions (six attacks), journalists and media (two attacks), non-Baloch settlers/workers (two attacks) and members of the Christian community (five attacks).[35] Given these figures, the total number of targeted attacks on Shias across the country has been declining and is not large in relative figures. Furthermore, according to EASO, ‘[a] significant decline has been observed in kidnapping during 2016. The number of kidnapping incidents dropped by 47 percent. Overall, 17 such incidents were recorded during last year while in 2015 the number was 32. Kidnapping was one of the major source of income for militants. However, Operation Zarb-e-Azb and intelligence based operations in urban areas dismantled kidnapping for ransom networks largely. 34 people were kidnapped in 2016 by militants’.[36] When this was discussed with the applicant, he commented that he agreed to some extent but there are still people being abducted and some being beheaded. One was just bringing firewood from the mountain. The Tribunal accepts that kidnappings are still taking place, but notes that the incidence has declined across the population.

   [35] EASO, 2017, Pakistan Security Situation 2017, EASO, 2017, Pakistan Security Situation 2017, >

   The Pakistan Institute of Peace stated that terrorist attacks reduced in 2017 by 16%.[37] DFAT summarised the offensive against terrorism as follows:

   In June 2014, the Pakistan Armed Forces launched Operation Zarb-e-Azb, a major offensive against terrorist groups across the country. Operation Zarb-e-Azb initially targeted terrorist groups in North Waziristan in the FATA , including the Tehreek-e Taliban Pakistan (the Pakistani Taliban or TTP), and gradually spread to other parts of FATA and Khyber Pakhtunkhwa province, with smaller, intelligence-based operations taking place across the country. The term Zarb-e-Azb has also expanded to refer to operations by the army and the Rangers, a paramilitary security force, in Balochistan and Karachi against various other terrorist, separatist and criminal groups. The operation reportedly resulted in the deaths of 3,500 suspected terrorists and 490 military personnel during its first two years.

   In December 2014, an attack on a school in Peshawar resulted in the deaths of 140 people, including 132 children. The attack led to the government introducing a National Action Plan (NAP), which, along with Operation Zarb-e-Azb, forms a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. Among other measures, the NAP: ended Pakistan’s unofficial moratorium on the death penalty; established military courts to try suspected militants; clamped down on sources of finance for militant organisations; took measures to restrict hate speech; and committed to implementing administrative and development policy reforms, particularly in the FATA.

   Operation Zarb-e-Azb and the NAP are credited with a significant reduction in the number of violent attacks in Pakistan. According to the South Asian Terrorism Portal, more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013. Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians. More than 20,000 civilians have died in terrorism-related violence since 2007. These statistics largely derive from news reports, and may understate the number of casualties. The government and military operations have disrupted the activities of militant groups and thousands of militants have been killed, including the high-profile leader of Lashkar-e Jhangvi (LeJ), Malik Ishaq, in 2015. Military courts have tried and convicted thousands of people with links to terrorist organisations.[38]

   [37] Pak Institute for Peace, Pakistan Security Report 2017,7 January 2018, Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

9. In sum, the country information set out above indicates that in Pakistan generally, there is a reduction in violence and there are relatively few targeted attacks against Shias. Further, overall levels of terrorist and extremist violence have continued to fall right up until the end of the first quarter in 2018.

10. Secondly, the Tribunal is not satisfied that Shias face systemic discrimination or ill-treatment generally, although there may be instances of discrimination. The UNHCR in its most recent report, states that Shias are the largest minority group in Pakistan, comprising between 15 to 25% of the population. According to the report, most Shias reside in Punjab, with smaller communities in Hyderabad, Karachi and Peshawar and Shias form the dominant majority in the tribal areas.[39] The DFAT Report indicates that there are no laws or government policies that discriminate against Shias, and Sunni and Shia communities are generally well-integrated:

    The Shia population is spread throughout Pakistan. While Shia do not constitute a majority in any of Pakistan’s four provinces, Shia do form a majority in the Pakistani-controlled autonomous region of Gilgit-Baltistan. Significant numbers of Shia live in Peshawar, Kohat, Hangu and Dera Ismail Khan in Khyber Pakhtunkhwa; in Kurram and Orakzai Agencies in the Federally Administered Tribal Areas (FATA); in and around Quetta and the Makran coastline in Balochistan; in parts of southern and central Punjab; and throughout Sindh. Large Shia communities live in urban centres throughout Pakistan, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. Although some Shia live in enclaves in these cities, the Shia and Sunni communities are generally well integrated…

    Most Pakistani Shia are not physically or linguistically distinguishable from Pakistani Sunnis. The National Database and Registration Authority (NADRA) issues Computerised National Identity Cards (CNICs) that do not identify cardholders by their religion (although NADRA collects religious information during the application process). Passports contain information on the holder’s religion, but do not differentiate between Sunni and Shia Muslims.

    There are no formal legal barriers to inter-sectarian marriage between Shia and Sunnis in Pakistan. ..

    Societal discrimination in Pakistan tends to manifest in the form of positive discrimination (nepotism, patronage, etc.) in favour of one’s own family, tribal or social group (though some minorities do suffer ongoing discrimination). However, some (typically low-level) anti-Shia discrimination does occur.

    Shia are represented in the professional community in Pakistan, including the medical and legal professions. There is no credible evidence of systemic discrimination against Shia in gaining admission to the public service, police, military or the private sector. However, there are perceptions of discrimination against Shia at higher levels of some organisations. DFAT notes that in remote areas and poorer cities such as Quetta employment opportunities are often limited regardless of ethnic or sectarian identity. Overall, DFAT assesses that Shia generally do not face significant levels of discrimination when seeking employment based on their religious affiliation. Shia are well represented in parliament and regularly contest elections for mainstream political parties.[40]

    [39] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of members of the religious minorities from Pakistan, January 2017, Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

11. The applicant acknowledged that there is no systematic discrimination against Shias in Pakistan, but he suggested that there is subtle discrimination, particularly in rural areas such as his village. In school Shias would be discriminated against and looked down upon, and called infidels or kafirs. As an example he said that in the army there are hardly any generals who are Shia. The Tribunal accepts that there may be instances of discrimination, but not that there would be a real chance of such discrimination, given the country information referred to above. Nor would such discrimination amount to serious harm as set out in the legislation.

1. Thirdly, the Tribunal is satisfied that there are identifiable parts of the country where there would not be a real chance of persecution in the reasonably foreseeable future. This would include Islamabad. The applicant has lived for significant periods of time in Islamabad. He did not suffer any serious harm while living there, nor is there any indication that he would suffer such harm in the reasonably foreseeable future. He has submitted that in Islamabad the imambargahs were close to Sunni mosques, and the one closest to where he lived was run by an imam who had invited people to join ISIS. He also provided country information relating to attacks in Islamabad. While there is no doubt that there are some people who live in Islamabad who are hostile to the Shias and there have been attacks there, taking into account the size of the Shia community, there has been a relatively low number of attacks and violence against Shias generally. Islamabad has a population of around 2 million people, including a large number of internal migrants from all parts of the country. According to DFAT, there is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Pakistan Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare. Such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders.[41] Representatives of the Shia community have told DFAT that Islamabad is one of the safest parts in the country for Shias.[42]  Further, as discussed above there is evidence indicating that in many areas Shias and Sunnis generally live together without any significant issues.

   [41] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

   [42] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

2. Taking these matters into account and the fact that the applicant did not suffer harm while living in Islamabad, the Tribunal is satisfied that there would not be a real chance of serious harm for reasons of his religion/ethnicity or being a Shia professional, given that he does not have a high profile, if he were to relocate to Islamabad in the reasonably foreseeable future.

3. The Tribunal is also not satisfied, given the improvements in security and the number of attacks that there is a real chance of serious harm from violence in many other parts of the country including Lahore. The DFAT Thematic Report, ‘Shias in Pakistan’, states that Shias are dispersed thought Punjab, including in the capital Lahore. In Lahore, in contrast to Rawalpindi, Jhang, Multan, Rahim Yar Khan and Gujranwala, Sunnis and Shias are ‘generally more integrated’. Further, ‘levels of generalised and sectarian violence remain lower in Punjab than other parts of Pakistan. In 2015 there were no Shia deaths from sectarian violence in Lahore.[43]  According to the DFAT Report, the security situation in Lahore tends to be better than other areas. Furthermore, representatives of the Shia community told DFAT that Lahore was one of the safest parts of the country for Shias. The applicant submitted that he could not relocate to Punjab or Lahore, as there had been harassment and discrimination against Pashtuns by Punjabis, including by the police. However, according to the DFAT Report:

   DFAT is aware that members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty obtaining identification. Since the commencement of Operation Zarb-e-Azb and the National Action Plan (NAP), large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities—due largely to the fact that the TTP’s support base is primarily Pashtun. The security situation for Pashtuns has improved in line with the general improvement in security across Pakistan. Pashtun-majority areas have traditionally experienced disproportionately high levels of tribal, intra-communal and politically motivated violence, and a high concentration of military operations. However, DFAT assesses that Pashtuns do not face a higher risk of violence than other groups based on their ethnicity. Pashtun community leaders in Lahore told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country. [44]

   [43] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,15 January 2016

   [44] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

4. Fifthly, there is extensive internal migration such that the applicant would not be particularly noticeable were he to move to a different area:

   Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. The country’s last census in 1998 showed the high level of internal migration; almost three million people lived in a different province to the one in which they had been born, and nearly 11 million lived in a different district. DFAT understands that large-scale internal movements have continued since the census in 1998.[45]

   [45] Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 1 September 2017

5. In summary, based on the independent country information and the applicant’s individual circumstances, the Tribunal is satisfied that that the applicant does not face a real chance of harm from extremist or anti-Shia groups in the reasonably foreseeable future in all parts of the country, for reasons of ethnicity or religion or for being a Shia professional.

6. Therefore the real chance of persecution does not relate to all parts of the country.

7. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his religion, ethnicity or any other of the reasons set out in the legislation, were he to return to Pakistan in the reasonably foreseeable future.

   Complementary protection

8. If a person is found not to meet the refugee criterion 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: (‘the complementary protection criterion’).

9. ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.

   Complementary protection criteria – is there a real risk of significant harm?

10. The Tribunal has found above, in relation to the refugee criteria, that there is a real chance of serious harm if the applicant were to return to his home region in the reasonably foreseeable future.

11. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal is satisfied, given the country information referred to earlier and the applicant’s experiences in his region, that there is a real risk (more than a remote or unforeseeable risk) of significant harm, in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, were the applicant to be removed from Australia to Pakistan, to his home region of Hangu.

    Complementary protection criteria – would it be reasonable for the applicant to relocate?

12. 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. There is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that ‘it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm’: s.36(2B)(a).

13. The test broadly reflects the relocation test in the Refugees Convention context – that is, that depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared harm.[46] There is an existing body of Australian case law on the principles which apply when considering relocation in that context.  The Federal Court has confirmed, in MZYXS v MIAC, that the issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context.[47]

    [46] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51

    [47] MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [37], followed in MZZAD v MIMAC [2013] FCA 879 (Dodds-Streeton J, 30 August 2013) at [65]-[66]; MIBP v MZZEV [2014] FCCA 22 (Judge Burchardt, 23 January 2014) at [55] – [57]; MIBP v MZZGD [2014] FCCA 60 (Judge Burchardt, 23 January 2014) at [30]-[31], and confirmed also in MZZKJ v MIBP [2013] FCCA 1770 (Judge Whelan, 31 October 2013) at [24]

14. The first question which arises in assessing relocation is whether there is an area of the country where, objectively, there would not be a real risk that the applicant will suffer significant harm, that is, whether the real risk of harm is localised rather than nation-wide. The Tribunal is satisfied, based on the country information set out earlier, that the real risk of harm is localised and not nation-wide, and that, for example in Lahore and Islamabad, there would not be a real risk of harm.

15. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.

16. The Tribunal has considered then whether it would be reasonable to expect the applicant to relocate to another area where there is not a real risk of significant harm (whether the harm initially feared, or another type of significant harm),[48] including risks of generalised violence.[49]  What is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country.[50]

    [48] See MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [39]

    [49]  SZSSM v MIBP [2013] FCCA 1489 (Judge Driver, 11 November 2013)

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

17. The Tribunal has noted above improvements in the security situation across Pakistan. In parts of Pakistan, such as Islamabad the evidence suggests that while there are incidents of violence, there is not a real risk of significant harm for reasons of being Shia or from generalised violence. The Tribunal was unable to locate evidence which suggests that the applicant would suffer harm in other parts of Pakistan because he is from the Bangash tribe, or because he originated in [Village 1], Hangu or Khyber Pakthunkhwa.

18. The applicant mentioned salaries as a difficulty, claiming he would not be able to provide for his family on [Occupation 2’s] wages, given the cost of apartments in Islamabad, and the fact that he needs to support a wife and child. He quoted the DFAT Report which states that in practice internal relocation can be limited by a lack of financial resources, compounded by high costs of housing. He also stated that he did not have family support in other cities. He claimed that it would be unreasonable to expect a person to relocate if economic destitution or lack of access to services would be the result.

19. According to DFAT, section 15 of the Constitution of Pakistan guarantees freedom of movement and there are no legal impediments to relocation. Further, because of Pakistan’s size and diversity, internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination or violence. DFAT states that there are options for members of most ethnic and religious minorities, including Shias, to relocate to areas of relative safety, and many large urban centres are home to mixed ethnic and religious communities.[51]

    [51] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,15 January 2016

20. The Tribunal notes that the applicant has [Degree 2] from [a] University and has also received specialist training from [a professional association]. He has worked as [Occupation 1] and [Occupation 2], as well as a partner in a [goods] import/export business. He lived in [Country 1] from 2011 to 2017 which has provided valuable work experience, as well as skills for living in new environments. This educational and employment experience should hold him in good stead for future opportunities in other cities or regions. The fact that he spent six years in [Country 1] and has travelled to Australia also indicates that he has the kind of resilience, resourcefulness and organisational skill necessary for relocating to a different region and adapting to new situations. He has spent significant amounts of time in Islamabad so he would be familiar with the work and social environment. According to DFAT, urban centres provide greater access to employment, education and health care services.[52] While the accommodation may be more expensive, DFAT reports that this is offset by higher wages paid in larger cities than villages.[53] He has had resources to travel extensively. Given these factors the Tribunal does not accept that the applicant would be economically destitute or that he could not access services, or support his family, although financially it may not be easy for him. The Tribunal notes that he also does have family in Pakistan who may be able to assist financially given that his wife and child are currently living with them.

    [52] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,15 January 2016

    [53] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,15 January 2016

21. Further, there are many Shia regions in major cities, including Islamabad and Lahore, as well as Pashtun Shia communities. In Lahore, there are Shia communities in Islampura and in old areas of the Walled City. In Islamabad there are Shia communities in Turi, Kohi-Noor and Golra Sharif and in small towns close to Islamabad.[54] As discussed earlier in this decision, DFAT has assessed Shias as at low risk of sectarian and generalised violence, and country sources indicate that the chance of significant harm is remote only and would not amount to a real risk. Pakistan is ethnically and linguistically diverse. Punjabis form the largest ethnic group (45%), followed by Pashtuns (15%), Sindhis (14%) and Seraikis (8%). DFAT has stated that in most areas Shias and Sunnis are well-integrated in communities. Although not ideal that he does not have families in other cities, he does have family support in Pakistan, and also has lived in Islamabad for significant periods in the past so he would be familiar with it, and would also be able to draw on social and cultural support from other Pashtun Shias. DFAT has observed that Shias relocate with relative ease and frequency because of family and community networks throughout Pakistan.[55]

    [54] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,15 January 2016

    [55] Department of Foreign Affairs and Trade, Thematic Report: Shias in Pakistan,15 January 2016

22. Taking into account the country information referred to above, as well as the particular circumstances of the applicant and the impact upon him of relocating within his country the Tribunal is satisfied that it would be reasonable, in the sense of practicable, for the applicant to relocate to a different part of Pakistan where there would not be a real risk of significant harm.

23. The Tribunal is not satisfied therefore that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

25. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Jane Marquard

    
    

    Member

    SUMMARY OF RELEVANT LAW

    CRITERIA FOR A PROTECTION VISA

28. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

29. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

30. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

31. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

2. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)    the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)    conceal an innate or immutable characteristic of the person; or

   (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)    the persecution must involve serious harm to the person; and

   (c)    the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)    a threat to the person’s life or liberty;

   (b)    significant physical harassment of the person;

   (c)    significant physical ill‑treatment of the person;

   (d)    significant economic hardship that threatens the person’s capacity to subsist;

   (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)    disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)    a characteristic is shared by each member of the group; and

   (b)    the person shares, or is perceived as sharing, the characteristic; and

   (c)    any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)    the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)    protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)    the person can access the protection; and

   (b)    the protection is durable; and

   (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   
   

‘UC’s general councilor shot dead in Hangu’, Pakistan Today, 28 September 2017,

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Citations

1725543 (Refugee) [2018] AATA 2973

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Cases Citing This Decision

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Kopalapillai v MIMA [1998] FCA 1126

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

MZZAD v Minister for Immigration and Citizenship [2013] FCA 879

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