1725841 (Refugee)

[2021] AATA 3214

1725841 (Refugee) [2021] AATA 3214 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1725841

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Brendan Darcy

DATE:25 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 25 June 2021 at 10:31am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia – race – Punjabi – discrimination in education – employment – fear of killing – religious violence – Shi’a community involvement – delay in applying for protection – internal relocation – settlement prospects in Gilgit-Baltistan – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 92
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MZYLH v Minister for Immigration & Anor [2011] FMCA 888
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of the Islamic Republic of Pakistan (Pakistan), applied for the protection visa on 9 June 2015.

3. On 2 October 2017, the delegate refused to grant the visa on the basis that the applicant’s claims lacked adequate explanation and detail and because the applicant’s prospect of persecution did not amount to being a real chance of serious harm or a real risk of significant harm.

   RELEVANT LAW

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

   Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

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

    Complementary protection criterion

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. Being mindful that the applicant applied for a protection visa prior to 14 December 2019, the issues in this case are whether the applicant has a well-founded fear of persecution based on one of the Convention reasons into the foreseeable future and whether the applicant will suffer a real risk of significant harm in his home area of Punjab Province, and whether it is reasonable, in the sense of being practicable, for the applicant to relocate to another part of Pakistan as required by the Convention and by s.36(2B)(b) of the complementary protection provisions.

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

21. The applicant claimed to be born on [date] in the Pakistani Province of Punjab and to be a citizen of Pakistan.

22. A copy of the applicant’s valid passport is on the Department file ([file number]) indicating he was born in the city of Lahore.

23. The applicant arrived in Australia [in] February 2014 while holding a [student visa].

24. The applicant validly lodged a Class XA Subclass 866 permanent protection visa on 9 June 2015 and was granted an associated bridging visa.

25. The applicant’s written claims can be summarised as follows:

    ·The applicant’s father was a [public servant] and was transferred on a regular basis due to discrimination he experienced. The applicant’s father only received one promotion in [number] years and quit in 2001 for reasons of finance and religious discrimination;

    ·The applicant’s family then moved to Lahore;

    ·His mother was falsely alleged to have preached her beliefs to other community members, and ‘Lashkar-e-Jhangvi’ (LeJ) warned her to move to a new house;

    ·In college he faced a lot of religious persecution, people would not sit with him as he was ‘kaffir’;

    ·In 2011 he began working as a [Position 1] of Shi’a social organisation ‘Tehrik‑E-Tahaffuz-E-Haqooq-E-Jaferia’ Pakistan. He volunteered and it brought positivity to him but he became a prominent Shi’a member of society and was subsequently targeted for it;

    ·He received further harassment and rude behaviour at university as a Shi’a;

    ·He applied for jobs during his final year but was refused. Others who were not Shi’a were given jobs. One recruiter asked him to change his religion for the job;

    ·He got a job but it did not pay well and he was subject to worse religious persecution with other Shi’a Muslims. He was spat on and not allowed to partake in certain activities;

    ·The applicant received death threats from LeJ because he is Shi’a Muslim. On [a day in] April 2013 a letter was left at his home demanding he stop his religious activities or be killed. He reported the incident to Punjab police but they said they could not protect him;

    ·The applicant hid at his [sibling’s] house and lessened his religious activities while he organised to get a student visa to leave Pakistan;

    ·In the month of Muharram he was involved in religious activities. On [a day in] November 2013 two motorbike riders fired at him as he was driving home from religious Majlis with a friend. The applicant’s friend was killed;

    ·The applicant fled to Australia, but his family told him they continued to receive phone calls threatening the applicant’s life;

    ·He cannot relocate to another part of Pakistan because he has no friends or relatives anywhere else, and as an ethnic Punjabi and a Shi’a Muslim he will not be accepted;

    ·His cousin and his family suffered persecution for being Shi’a and have since been granted protection in [Country 1].

26. According to the application form, the applicant can speak, read and write Urdu and English; his ethnicity is Punjabi and his religion is Shi’a Muslim. The applicant also claimed never to have been engaged to be married, married, or been in a de facto relationship. The applicant further claimed that he completed a Bachelor of [Subject 1] at the [named university] between [specified years].

27. A copy of a First Information Report (FIR) with an accompanying certified translation from Urdu into English was submitted to the Department. The FIR is dated [in] November 2013. It states that the applicant was a witness of an attack on himself and his friend, [Friend A], after attending a religious ceremony on [a day in] November at [time]. They were approached by unknown men on a motorcycle with their faces covered. One of the men pointed a pistol towards them and fired it. Two bullets hit [Friend A] and the men fled. The applicant was not hit. [Friend A] was taken to the hospital for his injuries. The applicant claimed in the FIR he received threatening calls on his mobile phone from people claiming to be members of LeJ.

28. Attached to the applicant’s Departmental file is an affidavit signed by [Mr B] on 14 August 2014. It states that the applicant has been working with [Mr B] in a [business] and vouched for him as being a hardworking and honest employee. It also stated that [Mr B] witnessed a serious level of discrimination against the applicant due to his Shi’a religious background and his very prominent Shi’a name. The other employees were rude and harsh towards the applicant. [Mr B] did not disclose his Shi’a religion in the same workplace and he even suggested to the applicant to change his name.

29. Another affidavit was attached. It was signed by [Mr C] and dated 12 August 2014. [Mr C] claimed to be studying for a Bachelor of [Subject 1] with the applicant and witnessed the applicant experiencing discrimination by the academics ignoring his raised hand when the applicant wanted to answer questions. This disrespectful behaviour towards the applicant, it was claimed, was motivated based on the applicant’s religion.

30. A further affidavit was submitted. It was signed by [Mr D] and dated 20 August 2014. [Mr D] claimed the applicant had been the captain of [a] cricket team but was given a discontinuation letter as the captaincy was designated to another player. The applicant was suspended from school due to having Shi’a religious beliefs and practices.

31. The is also a letter from Tehrik-E-Tahaffuz-E-Haqooq-E-Jaferia dated 17 July 2017 indicating the applicant was an active member of this Shi’a organisation while in Lahore and that the applicant was on the hit list of a number of Sunni militant groups.

32. There is also a letter from [a named community group] claiming that the applicant is a member this Shi’a Muslim association based in [local Australian community].

33. The applicant was interviewed by the Department on 23 July 2017.

34. A delegate on behalf of the Minister refused to grant the applicant a protection visa on 2 October 2017. The delegate made the following observation while deciding to refuse the application for a protection visa:

    ·The delegate accepted that the applicant is a Punjabi Shi’a Muslim from Lahore;

    ·The delegate accepted that the applicant has experienced harassment growing up and received threats for being a Shi’a Muslim;

    ·The delegate accepted that it is possible that the applicant was shot at on the street by unknown people; and

    ·The delegate did not accept that the applicant worked for ‘Tehrik-E-Tahaffuz-E‑Haqooq-E‑Jaferia’ Pakistan.

35. The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal on 23 October 2017 with the decision record attached.

36. On 13 April 2012 the Tribunal received a pre-hearing submission. The pre‑hearing submission also included:

    ·An 18-page legal submission prepared by the applicant’s representative;

    ·A number of affidavits previously submitted to the Department (mentioned above);

    ·Affidavits from May 2014 from more than 30 members of Tehrik-E-Tahaffuz-E‑Haqooq-E-Jaferia claiming the applicant had been a community organiser over a number of years;

    ·A transcription of the applicant’s 25 July 2017 interview;

    ·A death certificate pertaining to the hospital admission on [the day in] November 2013 and death of [Friend A]. It records the death as [time] on [a day in] November 2013 (by firearm on the chest and right leg);

    ·A letter from [name], the [office holder] of Tehrik-E-Tahaffuz-E‑Haqooq-E-Jaferia (and [leader] of [another organisation]), dated 17 July 2018;

    ·Translated document regarding Tehrik-E-Tahaffuz-E-Haqooq-E-Jaferia and the powers of its executive member (undated);

    ·A copy of the applicant’s membership card of Tehrik-E-Tahaffuz-E‑Haqooq-E‑Jaferia;

    ·A resubmitted copy of a November 2013 FIR and translation indicating the applicant made a complaint to the police at the [named] police station at Lahore, dated [in] November 2013.

37. The applicant appeared before a scheduled hearing on 21 April 2021 at the Tribunal’s Melbourne registry. The applicant was assisted by an interpreter in the Urdu and English languages. Also present was the applicant’s representative from [a named legal service].

38. At the end of the hearing, the applicant and his representative were invited to provide a post‑hearing submission and to do so by 4 May 2021.

39. On 4 May 2021 the Tribunal received the following from the applicant’s representative including a 29-page legal submission prepared by the applicant’s representative; and several photographs of the applicant with leaders in the Punjabi Shi’a community including with [named people including religious reciters].

40. Right up to the time of making this decision, no further information or documents were received by the Tribunal.

41. There are no non-disclosure certificates attached to the applicant’s Departmental file.

    Country information

42. Below is an extract about the general security situation in and the various armed groups operating within Pakistan from the DFAT country information report on Pakistan dated 20 February 2021:

    SECURITY SITUATION

    2.66The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.

    2.67Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

    2.68Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek[1]e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).

    2.69The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).

    2.70Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi’a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). Three of the faith-based violent incidents targeted the Ahmadi community (see Religion and Ahmadis). Sectarian violence also reduced by 40 per cent (12 incidents reported) in 2018 compared to 2017.

    2.71Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti-Shi’a sectarian groups). While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti-Pakistan Sunni groups and anti-Shi’a sectarian groups).

    2.72The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.

    Armed Groups

    2.83While terrorist attacks declined in 2017 and 2018, armed groups remain a threat to Pakistan’s domestic security and Pakistan-based terrorist groups remain a threat to Pakistan's neighbours, particularly India. Armed groups can be generally categorised into four main groups: anti-state militant groups such as the TTP, sectarian militant groups, anti-Indian and Afghan-focused groups, and secular nationalist groups, such as the Baloch militants. However, the variety of forms of extremism in Pakistan feed off each other and the dividing lines between the various groups is often blurred.

    Anti-Pakistan Sunni groups and anti-Shi’a sectarian groups

    2.84Despite official disruption efforts, the TTP and its affiliated networks remained the greatest security threat to Pakistan, with the highest overall number of attacks in 2018. TTP is the largest banned group in Pakistan and was responsible for 79 terrorist attacks across the country, resulting in 185 fatalities and 3336 injuries in 2018 (compared to 70, causing 360 fatalities and 360 injuries in 2017). The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into several separate groups reflecting Operation Zarb-e-Azb, leadership tensions and the rise of ISIL. Nevertheless, in early 2017, a number of these splinter groups re-joined the TTP or pledged support for its leader. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned. TTP's level of cohesion waxes and wanes depending on the leadership. Even when TTP undergoes cyclical splintering, the disparate networks remain dangerous and willing to break any short-term agreements they may reach with the Pakistani state.

    2.85Hizbul Ahrar (HuA), formed from a split within TTP-Jamaat-ul-Ahrar (TTP-JA) in November 2017, and claimed a large number of attacks in Pakistan and Afghanistan in 2018. HuA targets law enforcement agencies, and attacks have ranged from small scale IED attacks to complex, multiple attacker or successive attacks across multiple locations.

    2.86The UN listed Jamaat ul Ahrar (JuA), an autonomous faction of the TTP, as a terrorist group in 2017. JuA was involved in 15 terrorist attacks (all in Khyber Pakhtunkhwa), killing 11 and injuring 16 in 2018 (compared to 37, killing 123 and injuring 306 in 2017). JuA leadership reportedly has close ties to al-Qaeda. Smaller militant groups in Khyber Pakhtunkhwa and the former FATA, labelled the ‘local Taliban’ for their TTP sympathies, carried out 28 terrorist attacks in 2018 (compared to 29 in 2017).

    2.87 Banned in 2008, Lashkar-e-Islam (LI) is a militant group based in Khyber Agency, former FATA, which has had contact with ISIL’s Khorasan chapter in Afghanistan. LI was involved in 10 attacks in 2018 (compared to 21 in 2017, 19 of which were in Khyber Agency). ISIL is active in Pakistan, and its regional affiliate Islamic State in the Khorosan Province (ISKP) has heavily drawn on ex-TTP for its membership. ISKP increased its operations in 2017 and 2018.

    2.88ISIL had the highest death toll, and conducted five major attacks, killing 224 and injuring 301 in 2018 (compared to six major attacks, killing 153 people and injuring 380, and kidnapping and killing two Chinese nationals in Quetta in 2017). ISIL had a more significant presence in Balochistan and northern Sindh, and became increasingly involved in sectarian terrorist attacks in Pakistan and Afghanistan in 2018. ISIL was also the most lethal group during the 2018 elections, with an attacks on a political polling station near Quetta and on a political gathering in Mastung killing over 180 people in 2018. While the government denies that ISIL operates in Pakistan, security forces have claimed operational success against ISIL. JuA, factions of the TTP and Lashkar-e-Jhangvi (LeJ) Al-Alami reportedly have operational links with ISIL. It remains unclear whether IS directly commands attacks in Pakistan, or whether it claims attacks conducted by sympathetic militant groups. Security experts suggest the increasing number of successful attacks indicates ISIL is conducting its own activities. Regardless, ISKP is able to use local anti-Pakistan networks to project strength and grow.

    2.89Lashkar-e-Jhangvi (LeJ), a Sunni paramilitary terrorist group, conducted seven terrorist attacks in 2018 (compared to 10 in 2017. LeJ faction, LeJ Al-Alami, also conducted 8 terrorist attacks in 2017). LeJ primarily targets Shi’a, especially the Hazara community in Quetta, and also acts against Christians, Ahmadis and Sufi Muslims. In total, the two groups were responsible for killing 132 people. ISKP reportedly supported LeJ as a proxy in Afghanistan to target Shi’a.

    2.90Several other banned Sunni militant groups continue to operate throughout Pakistan, including Sipah-e-Sahaba Pakistan (SSP, also known as Ahle Sunnat Wal Jamaat or ASWJ) and Jaish-e Mohammad (JeM) (see India-focused Sunni groups). Shi’a militant groups such as Sipah-e-Mohammad Pakistan (SMP) have attacked Sunnis, although Shi’a militancy has declined as the security situation has improved. SMP reportedly acts primarily in Punjab province to attack Sunni militant groups such as LeJ and SSP, and was responsible for targeted killings of Sunnis in Karachi and Quetta in 2014. DFAT is not aware of any major attacks by SMP or other significant Shi’a militant organisations in recent years, although Shi’a have killed suspected Sunni militants.

    2.91The frequency of sectarian attacks has reduced annually since the launch of Zarb-e‑Azb and the NAP in 2014. The South Asia Terrorism Portal reports 16 incidents of sectarian violence killed 231 people and injured 691 in 2017, compared with 131 incidents killing 558 and injuring 987 in 2013 (2018 data not yet available). This trend continued in 2018, with a 40 per cent reduction in sectarian violence (12 incidents) compared to 2017.

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of reference

1. The applicant claims to be a national of the Islamic Republic of Pakistan (Pakistan). The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. Based on the available evidence, all of which is on file and with no evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

   Third country protection

2. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Credibility findings

3. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

4. The Tribunal is not required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70). In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established, nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

   Accepted personal circumstances of the applicant

5. The Tribunal accepts the following as credible and reliable information about the applicant’s personal circumstances:

   ·The applicant was born [year] in Lahore in Pakistan’s Punjab Province, as claimed;

   ·The applicant’s parents continue to reside in metropolitan Lahore; his father is a retired [public servant] and his mother is a homemaker;

   ·The applicant has one [sibling], who is an unmarried student living in Lahore, and he has one [sibling] who is married and has recently migrated to [Country 1] on a partner visa;

   ·The applicant has never been married, engaged to be married, or lived in a de facto spousal relationship, and the applicant does not have any children, biological or otherwise;

   ·The applicant speaks, reads and writes in the Urdu language and, to a lesser extent, in the English language, and he speaks and understands the Punjabi language;

   ·The applicant’s ethnicity is Punjabi; and his religion is Shi’a Muslim, along with the rest of his family, and the applicant has maintained his faith as a practising Shi’a since arriving in Australia;

   ·The applicant’s highest level of educational attainment is a bachelor’s degree in [Subject 1] which he obtained in a university in Lahore; and

   ·The applicant worked in a [business] in Lahore prior to his departure and while the applicant was in Australia he has worked in various positions in [specified sectors].

6. Arising from these findings, the Tribunal also makes the finding that the home area of the applicant and his family is Punjab Province for the purposes of determining whether the applicant has a well-founded fear of persecution based on any of the claimed Convention reasons or whether the applicant will suffer a real risk of significant harm for any reasons.

   Past harm incidents: education and employment

7. A number of the past harm incidents the applicant recalled in his written and oral claims for protection involved discrimination as a student and a jobseeker.

8. First, the applicant claimed that he experiences bullying and name-calling because of his Shi’a religion while attending a public school whose pupils were predominately Sunni Muslims. The applicant specifically claimed that being one of two Shi’a students, he was called a non‑believer and an infidel and he was forced to sit at the back of classrooms. He also claimed that during noon prayers, the Shi’a students were marked out by teachers. On balance, the Tribunal accepts the applicant had experienced these claimed incidents of discrimination and derogatory behaviour as a secondary student.

9. Second, the applicant claimed that while at secondary school, his cricketing prowess and leadership skills were sufficient for him to become captain of the cricket team but he would later be denied the position based on him being a Shi’a. The Tribunal asked if the applicant was told by any of the teachers or selectors of the cricket team why he was denied the captaincy. The applicant responded that he was provided with no reason. The Tribunal said if he was provided an opportunity to hold a senior role in the team then that might indicate the discrimination by fellow Sunni players were not as discriminatory as he has outlined, to which the applicant stated that it did not mean he did not encounter discrimination or that he did not have Sunni friends in this instance. On balance, the Tribunal accepts the applicant had experienced discrimination and derogatory behaviour based on his religion in extracurricular activities while at secondary school, as claimed.

10. Third, the applicant claimed that to avoid discrimination the applicant did not attend secondary school to complete his matriculation but stayed at home, where his father, a former [public servant], instructed him. Relatedly the applicant had claimed that [one sibling] was educated at a private school to avoid the discrimination he had endured. On balance, the Tribunal accepts these claims.

11. Fourth, the applicant claimed that his father has suffered discrimination as a [public servant] based on his Shi’a religion whereby he was required to move [between offices] and whereby his father was not promoted above [a grade] within the [agency] before retiring on a pension in 2001. On balance, the Tribunal found this claim to be credible. It is also noted that this is evidence that Shi’as are able to gain government positions despite widespread sectarian discrimination towards Shi’a Muslims by the mainstream Sunni Pakistanis.

12. Lastly, the applicant claimed that he hoped to graduate with a [Subject 1] degree and begin a career in [the related sector], such as becoming [an Occupation 1]. In the applicant’s written claims, he claimed that he received some rude comments about his Shi’a status. It is noted that the applicant did not elaborate that he experienced any harm or harassment while at university during the scheduled hearing. However, the applicant did elaborate that he was unable to gain suitable employment based on his religion.

13. As discussed in the hearing, the applicant worked in a [business] but did not have any role in marketing or sales, only in the physical [duties], and he undertook this work right up to the time of his departure. The applicant claimed this workplace was toxic due to the sectarian atmosphere whereby he endured anti-Shi’a insults and discrimination. The Tribunal asked into the reason he did not find employment in a Shi’a owned business or one where Shi’as were predominately employed. The applicant claimed that he did apply but they did not hire or employ him as he wanted to work near his family home and local Shi’a mosque. The applicant further elaborated that Shi’as did not run any businesses in Pakistan. The Tribunal said that was unlikely and implausible given there were as many 20 million Shi’as in Pakistan. The applicant qualified that he meant there were no such Shi’a businesses or Shi’a friendly employers near his family home. The Tribunal accepts the applicant’s university experience and his [business] role entailed sectarian insults and discrimination as claimed to be true. However, it does not accept the applicant was unable to access any Shi’a businesses or businesses that employed Shi’as reasonably close to his residential and local religious community or that he was unable to work in Pakistan’s [specified] sector based on his faith.

    Past harm incident: the applicant’s role in the Shi’a community

14. The applicant has claimed that since 2011, he has played a role within ‘Tehrik-E-Tahaffuz-E‑Haqooq-E-Jaferia’ as a [Position 1] and co-ordinator of the organisation. He provided a letter from the [office holder] from the same organisation (dated in 2017) to confirm this.

15. The applicant has claimed that he joined this organisation as his father wanted the applicant to be involved in a peaceful Shi’a community organisation or sect involved in social and welfare programs and events for the community to address the applicant’s low feelings or depression. The longer he participated the more responsibilities he gained, as well as confidence, while the organisation was pleased that a younger person and not just retirees participated.

16. According to the decision record, the applicant informed the Department in an interview that he would organise events, book Shi’a scholars, reciters and poets for learned lectures and organise their accommodation and hire cars for them. He claimed that he helped obtain funds and [did specified duties] as a [Position 1]. At the hearing, the applicant consistently repeated these claims.

17. The applicant has also provided photographic evidence in a post-hearing submission that he has personally met a number of Punjabi Shi’a leaders. The Tribunal accepts this as genuine supportive evidence as he is a member of the Shi’a organisation mentioned above.

18. When the Tribunal asked which Lahore mosque or institution the applicant’s activities were attached to, to which he applicant responded it was [named].

19. It is noted that the delegate did not accept the applicant to be a member of ‘Tehrik-E‑Tahaffuz-E-Haqooq-E-Jaferia’ but did not provide any reasons other than on the basis of a fraudulent document emanating from Pakistan and the vague reasons he provided for being involved.

20. On this occasion, the Tribunal accepts the applicant’s active membership. It appears reasonable that the applicant’s father would encourage his son to improve his mental outlook in an association in which his father was familiar. That the applicant was unaware of the fundraising for a mosque or Shi’a association does not seem that surprising. Generally, such fundraising is done through the annual compulsory ‘zakat’ donation and ‘ushr’, a compulsory rate of donation on landowners and landlords.[1] These are a religious and social obligations placed on Muslim Pakistanis overseen and distributed by Zakat Councils to nominated organisations including educational schools, religious schools and hospitals.

    [1] >

    However, the Tribunal does not accept the applicant’s characterisation within his Shi’a community as ‘prominent’ within Lahore or Punjab more generally, nor does the Tribunal accept the characterisation as an ordinary member with little profile within his community. The Tribunal finds that the applicant’s role in his local Shi’a community in Lahore is more accurately characterised as ‘locally well-known’.

21. The applicant claimed that he first came to the adverse attention of Sunni militants on [a day in] April 2013 when a letter was received at his residence. He claimed that it stated “[Applicant’s name], stop your religious activities as soon as possible otherwise we well kill you”. The applicant made a First Information Report to the local police station but the policeman on duty did not take much interest in it, suggesting it was a prank. As the applicant’s parents became fearful for the applicant’s safety, the applicant stayed at his [sibling’s] house and began to prepare to leave Pakistan for his safety. It was during this period of time that the applicant began applying for a student visa to depart Pakistan. On balance, the Tribunal accepts this incident.

22. The applicant further claimed that on [a day in] November 2013 two motorcycle riders fired at him and a friend, [Friend A], as he was driving home from religious Majlis with a friend. The applicant’s friend died a few days after the incident. The applicant also claimed to have received a phone call from LeJ after the incident. Documentary evidence was provided. The Tribunal notes the delegate found these claims possible or plausible.

23. During the hearing, the applicant elaborated on this incident. The Tribunal noted to the applicant that there were a number of inconsistencies and implausibilities between his oral testimony and the contents of the FIR. For instance, the applicant claimed that he called the police and not bystanders, although he claimed to be unconscious or in a state of shock. The Tribunal did not find this a credible and consistent account. Also, the applicant’s account at the hearing about visiting the hospital where his friend lay did not correspond with the FIR. Moreover, the Tribunal enquired into the reasons [Friend A’s] 2013 death certificate and a number of affidavits dated May 2014 were not submitted to the Department. The applicant responded implausibly that he claimed to have overlooked the document for as much as two years. The Tribunal also notes an absence of any independent reporting of the incident. Overall, the Tribunal does not accept the account that the applicant and his friend was shot at on [the day in] November 2013 leading to the hospitalisation and death of his friend. Neither does the Tribunal accept the applicant received a phone call from the LeJ further threatening the applicant. It finds that the submitted documentary evidence – the applicant’s relevant FIR and accompanying copy of [Friend A’s] certificate – were bogus documents designed to augment or embroider the applicant’s otherwise more generally credible claim that he feared persecution based on his religion at the time of his departure.

24. Nonetheless, the Tribunal does find it plausible and possible that he experienced sectararin intimidation threatening his life and that he had witnessed shootings by Sunni militants, not necessarily the LeJ, and was possibly a target of such a shooting, if for no other reason than to intimidate him and others, solely because of their role in organising Shi’a events and festivals. The year 2013 was a period when, throughout Shi’a communities in Pakistan, shootings and terror attacks were prevalent and widely reported. For these reasons, the Tribunal accepts the applicant held genuine fears of being shot or abducted for the reasons claims, despite the Tribunal’s misgivings about some of the lack of credible evidence provided.

    Delay in applying for protection

25. The applicant has claimed that he travelled to Australia because he had a well-founded fear of persecution based on his religion and arising from a claimed number of past harm incidents, some of which are not accepted by the Tribunal.

26. However, the applicant arrived in Australia in February 2014 on student visa, but did not apply for a protection visa until June 2015. The Tribunal enquired into the reasons the applicant delayed applying for a protection visa, given he had opportunities to do so. The applicant claimed various reasons including that he was traumatised and found Australia an unfamiliar environment. He claimed he tried to discuss his circumstances with a lawyer. The Tribunal found this was weakly argued, especially given he was a tertiary educated person with some English language capacity and he had used an agent in Pakistan to gain a student visa.

27. More convincingly, the Tribunal noted the applicant had surgery on his [specified body parts], and that recovery took as much as six months. At the very least, the Tribunal accepts that this surgery and the subsequent convalesce impacted on the applicant’s delay in applying for a protection visa.

28. The Tribunal also notes the country information that in 2015, sectarian attacks on Shi’a Muslims in Pakistan had worsened and this would have contributed to the applicant’s decision to apply for a protection visa.

29. With some misgivings, the Tribunal accepts the applicant had a genuine and deep personally held fear of persecution, but not one that would be characterised as an urgently held fear of persecution based on his religion at the time he arrived in Australia, and it accepts the notable delay in applying for a protection visa.

    Ongoing indirect threats to the applicant

30. The applicant has claimed that the applicant’s family in Lahore continues to receive threatening calls. The last threatening claim is claimed to have been received in November 2020 and the call was from LeJ, acknowledging the applicant to have left the country, but they promised they will ‘take care of him’, which the applicant understood to mean kill him. Asked how the applicant knew it was from LeJ, the applicant said they chant over the phone ‘Long live Jhangvi’. The Tribunal enquired into the reason LeJ or any other Sunni group would make these threats given the applicant has not returned to Pakistan since 2014 and they have not harmed his family members living in Lahore, given they detest all Shi’as and are known to have killed Shi’a Muslims in large scale terror attacks. The applicant responded that he is a target of high importance to LeJ and that the extremists were fixated on him.

31. In the context of abovementioned adverse credibility findings and the passage of time passed, the Tribunal found this account of ongoing indirect threats towards the applicant to be unconvincing and lacking in credibility. LeJ is strongly motivated to cause general harm to Shi’a Muslims and it does not accept LeJ maintained a long‑term fixation on the applicant given his long absence from Lahore or that LeJ would not threaten all members of the applicant’s family members based on their shared Shi’a identity. The Tribunal finds that the claims about ongoing threats against the applicant personally by the LeJ or any other anti-Shi’a Sunni extremist outfit to be an embellishment to augment his otherwise credibly held fears of being harmed as a Shi’a Muslim if returned to his home province of Punjab, or Pakistan more generally, into the reasonably foreseeable future.

    Does the applicant have a well-founded fear of persecution in his home area?

32. Noting the findings above, the Tribunal accepts that the applicant does hold a genuine and deep, albeit not an urgent, personally or subjectively held fear of persecution based on his Shi’a religion and other personal circumstances, if he were to be returned to his home area into the reasonably foreseeable future. It has also made a number of findings that the applicant’s written and oral claims and some of the third-party statements and documentary evidence, including the FIR, have not been accepted as reliable or credible.

33. Despite these misgivings, there are salient features about the applicant’s religion and position in his religious community that have invited the Tribunal to consider whether there are any objective reasons or assessments for accepting the applicant holds a well‑founded fear of persecution for a Convention reason. Those salient features are that the applicant is a Shi’a Muslim; that he held a position in the Shi’a community and it is accepted as credible that this led to confrontations with anti-Shi’a Sunni operatives from LeJ; and that sectarian violence in Punjab Province remains an ongoing security threat to the lives and well-being of Shi’a Muslims led by LeJ and other anti-Shi’a Sunni extremists.

34. The following country information about Punjab was discussed in the hearing:

    In Punjab, sectarian tensions and violence are more prevalent in the south, and in parts of Gujranwala, Sialkot and Rawalpindi. Conservative madrassas and militant groups are more prominent in southern Punjab, and Sunni and Shi’a communities are more segregated. Shi’a live throughout Punjab, including in Lahore. Shi’a and Sunni communities in cities are much more integrated. According to the SATP, three incidents of sectarian violence in Punjab in 2017 killed three people and injured one, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. The largest sectarian attack in Punjab in 2016 targeted Christians (see Christians). While violence can occur in any part of Punjab, DFAT assesses that Shi’a in Lahore and Islamabad face a low risk of sectarian violence.

1. The applicant responded at the hearing that he not only feared LeJ and other Sunni extremists but feared discrimination in Punjab as Shi’as were regularly insulted as ‘kaffirs’ or infidels by the Sunni mainstream of Pakistan, and that these insults carried with them the threat of elimination and exclusion from Islam. In the representative’s post‑hearing submission, it was emphasised that non-state persecutors that Shi’a Pakistanis fear are growing in their transnational strength and that the weakened (and financially conflicted) government such as the Pakistani government is unable to protect its Shi’a citizens from the targeted violence. It was further argued that these anti-Shi’a militant groups are increasingly sophisticated, coordinated and financially resourced. They operated across country borders and across regions in Pakistan. In Pakistan, these groups include the LeJ, the Taliban/TTP, Islamic State Khorasan and Pakistan (ISKP) and Jamaat-ul-Ahrar, which are heavily coordinated, and the LeJ and ISKP are becoming increasingly aligned. These militant groups operate throughout the Punjab, Sindh (especially Karachi), KPK and Balochistan. As discussed above, the LeJ are predominantly Punjabi, though this group, the TTP and Jamaat-ul-Ahrar have in recent years been able to carry out their largest attacks throughout Pakistan. The applicant’s representative cited a media report from The Pakistani Tribune reporting on analysis from the Tony Blair Institute for Global Change dated 14 September 2018.[2]

   [2] 95% of sectarian violence worldwide focused on Shi’as only, reveals report (tribune.com.pk), dated 14 September 2018, The Tribune online.

2. However, it is the Tribunal’s assessment that while Sunni terror groups attack a wide range of groups, including journalists, Shi’as and Christians, and aim to weaken the Pakistani, the authorities in Pakistan have strengthened the capacity of the security forces and law enforcement within Pakistan, including Punjab Province, to meaningfully reduce targeted attacks on Shi’a communities, especially in public gatherings. The Tribunal is satisfied with the DFAT assessment whereby it states that while violence can occur in any part of Punjab, it assesses the Shi’as in Lahore and Islamabad face a low risk of sectarian violence, meaning that ordinary Shi’a Muslims face a remote or insubstantial chance of serious harm arising from targeted sectarian attacks on Shi’a Muslims throughout Punjab Province.

3. The Tribunal has accepted that the applicant has experienced or witnessed targeted harm towards members of the Shi’a community in Lahore, although it does not accept the applicant’s claimed [November] 2013 incident in which he and a friend were subjected to assailants on motorcycles.

4. The Tribunal accepts that while the applicant is not an imam who leads prayers or delivers sermons on Fridays or presides over marriages and funerals, his role in festivals and the safety of participants in them lend him to having an active and recognisable membership of Shi’a persons in his community, such as the applicant has credibly claimed to be, and he is a well-known local Shi’a.

5. With this notable but localised profile in mind, the Tribunal accepts that the applicant is sufficiently known or recognisable to Sunni Muslim militants in Lahore, which heightened the applicant’s chances of being targeted for sectarian violence. The UK Home Office report on Shi’as in Pakistan (January 2019) states that targeted attacks by armed groups continue and Shi’a traditionally represent a higher proportion of casualties from sectarian violence, although sectarian violence against Shi’as has declined since 2013. The Tribunal notes in the same report a relevant incident. On 23 November 2018 a bomb explosion at a market in the Shi’a-dominated Kalaya area of Orakzai district, KP (Khyber Pakhtunkhwa), killed up to 31 people, including at least 22 Shi’as. Radio Free Europe/ Radio Liberty reported at least 35 people were killed and more than 50 wounded, the majority of whom were Shi’as. The attack occurred despite high security at and around imambargahs (Shi’a congregation halls) and mosques following intelligence reports that terrorists might attack Friday congregations in the area. According to the India news site This Week, the Islamic State claimed responsibility for the attack. While this occurred in another state and responsibility was not claimed by LeJ, it is the type of gathering that the applicant would be involved when organising in Lahore should he return to Pakistan. Such activities, including Ashura festivals, will continue to be targeted by Sunni militant organisations. On balance, the Tribunal accepts that the applicant, arising from his role as a well-known community organiser in a Shi’a community in Lahore, will face a real chance of serious harm from terror attacks by Sunni extremists. Even though the tempo and lethality of such attacks has notably reduced since 2013, the authorities cannot disrupt every terror outrage of this kind in Punjab Province for the foreseeable future. The applicant has provided a sufficiently convincing case that the applicant will be in harm’s way more often than any ordinary Shi’a Muslim in Lahore, and the Tribunal assesses that the applicant faces a foreseeable chance of being killed or maimed in terror attacks, abductions, drive‑by shootings and ongoing physical harassment which is equal to or more than a real chance, if he were to return to his home province of Punjab.

6. In this regard, the Tribunal finds the applicant holds a well-founded fear of persecution, subjectively and objectively assessed, based on a Convention reasons, namely his religion, in combination with a heightened local profile as a Shi’a community organiser, into the reasonably foreseeable future, if he returns to his home area of Punjab Province.

   Relocation of the applicant for the purposes of the Refugees Convention

7. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440‑1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.

8. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio‑economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

9. In MZYLH v Minister for Immigration & Anor [2011] FMCA 888 (17 November 2011),[3] the court said at [137]-[138]:

   137.     The Tribunal is required to consider the practical realities facing a person in determining whether it is reasonable to expect them to relocate. Those practical realities are not limited to matters related to persecution for a Convention reason:

   A well founded fear of persecution for a Convention reason having been shown, a refugee does not also have to show a Convention reason behind every difficulty or danger which makes some suggestion of relocation unreasonable. [146]

   138.     The issue is not whether the Applicant might be denied treatment for his mental illness for a Convention reason but whether he could relocate within Pakistan and maintain himself given the state of his health. As Branson J said in NAIZ, the approach set down in Randhawa requires the Tribunal to consider the practical realities facing the Applicant to consider how, in a practical sense, he could reasonably be expected to relocate. [147]

   [3] In that case there was evidence that the applicant was suffering from severe depression and severe post‑traumatic stress disorder.

10. During the hearing, the issue of relocation to another area of Pakistan was raised with the applicant. In particular, it was raised with the applicant that Gilgit-Baltistan was a region or province whereby it may be reasonable for the applicant to relocate. The Tribunal sought and received a lengthy post-hearing submission via the applicant’s representative.

11. The most recent DFAT report states the following about Gilgit-Baltistan:

    2.48 Pakistan also administers approximately one-third of the area of the former princely states of Jammu and Kashmir and Gilgit-Baltistan — also known as the 'Northern Areas' of Pakistan — that have a quasi-provincial status and are not represented in the National Assembly. They elect their own parliaments and governments. Control over these autonomous regions is a source of tension between Pakistan and India.

    […][…]

    Approximately two million people live in Gilgit-Baltistan, a sparsely populated autonomous region in the north. The population comprises Shi’a (approximately 39 per cent), Ismaili Shi’a (18 per cent), Sunnis (27 per cent), and Nurbakshis, who adhere to a Sufi tradition combining aspects of Shi’a and Sunni theology (16 per cent). The mountainous terrain, sparse (and majority Shi’a) population, and the fact that communities tend to live in isolation from each other mean that Gilgit-Baltistan has fewer violent incidents than other regions in Pakistan. DFAT is not aware of any sectarian attacks taking place in Gilgit-Baltistan between 1 January 2017 and 6 May 2018. However, Gilgit-Baltistan’s economy is less advanced and it can be hard for people of any faith, especially youth, to secure employment.

12. The Tribunal notes the Convention reasonableness test is a stricter test than either the ‘real chance’ and ‘real risk’ tests.

13. In November 2020, Prime Minister Imran Khan announced that the province would obtain provisional provincial status. Internationally it, along with the Azad Kashmir, is referred to as ‘Pakistani administered Kashmir’ of Federally Administrative Northern Areas (FANA). Gilgit District has the highest population with 330,000 people. The population is ethnically diverse and multilingual where Urdu serves as the lingua franca for inter-ethnic communications, and English is the co-official language and also used in education.

14. As mentioned above, the population, although overwhelmingly Muslim, is the most diverse. It is the only region with a Shi’a-plurality area with Sunni and Ismaili making up large minority populations. The Shi’a and Ismaili populations have diluted by a deliberate policy of encouraging migration of Sunnis into this province. The policy is said to have been motivated by a desire to country the growing sectarian consciousness of Shi’as after the 1979 Iranian Revolution.

15. While the Shi’a-plurality of the province’s demographic invited a discussion about relocation for the applicant at the hearing, so did the relatively low levels of reported sectarian violence arising from terror incidents. Since 6 March 2000, the South Asia Terrorism Portal (SATP) started compiling data on conflict in Pakistan. As of 18 June 2021, the region has accounted for a total of 175 fatalities, including 118 civilians, 31 Security Force (SF) personnel and 26 terrorists. Civilians have borne the brunt of terrorism in the region. Terrorism-linked violence in the region has remained under check in recent times. For instance, there were no killing incidents in 2019, one in 2020 and none for 2021 to date. However, Gilgit-Baltistan recorded a peak of 60 fatalities (52 civilians and eight SF personnel) in 2005, as well as 41 fatalities (27 civilians, two SF personnel and 12 terrorists) in 2012.[4]

    [4] Datasheet - Gilgit-Baltistan, South Asian Terror Portal, figures also reflected in SATP assessment sourced at the time of writing.

16. This compares well, both relatively and in absolute terms, with the rest of Pakistan according to a 2021 SATP assessment.[5] The security situation in Pakistan deteriorated in 2020, as compared to 2019. The country accounted for 506 fatalities (169 civilians, 178 Security Force, SF, personnel, 159 terrorists) in 2020, as against 365 fatalities (142 civilians, 137 SF personnel, 86 terrorists) in 2019, an increase of 38.63 per cent in overall fatalities. The country has already recorded 114 fatalities (39 civilians, 38 SF personnel, 37 terrorists), in the current year, so far (data till February 27). Other parameters of violence also indicated a deterioration in the security situation. Overall terrorism linked incidents increased from 284 in 2019 to 319 in 2020. Killing incidents in particular increased from 136 to 193. Though the number of major incidents (each involving three or more fatalities) increased by one, from 52 to 53, the resultant fatalities in such incidents increased from 254 to 317. Though Balochistan remained the epicentre of violence, there were ample signs of a resurgence of violence, after a relative peace, in Khyber Pakhtunkhwa. Minorities continued to bear the brunt of terrorism in Punjab, while separatism was on the rise in Sindh.

    [5] >

    The post-hearing submission provided the following reasons as to the unreasonableness of relocation in this matter. Below is a summary of those claims:

    ·The region’s constitutional status is distorted, and as the residents have not obtained the full benefits of its current status, there is a sense of neglect and discrimination prevailing among the local population;

    ·The semi-autonomous region was not included in the CPEC negotiations, and there is much secrecy and confusion that encircles the project;

    ·The CPEC favours Punjab Province and will exacerbate the destitution of Gilgit‑Baltistan’s people;

    ·There are fears of attacks due to the high securitisation of the area by Islamic terrorists in retaliation of China’s treatment of Uighur Muslims;

    ·Shi’a Muslims in the region blame Sunnis for the lopsided development, including a low literacy rate, including among women;

    ·Sectarian violence is not uncommon, notably the 2012 massacre by Sunni Jundallah;

    ·The economy is based on tourism, finds from the central government and the beneficial interest of China in the CEPC project;

    ·As there is no industrial basis, the population relies on government jobs, agriculture and tourism;

    ·There are 17 regional languages in Gilgit-Baltistan apart from Urdu as the national language and English as an official language for correspondence between government officials;

    ·The applicant has never been to Gilgit-Baltistan and does not know the languages spoken in the region;

    ·The applicant does not have any skills to contribute towards tourism and will not be able to obtain government jobs as he is Punjabi;

    ·The applicant will hardly be able to live with economic freedom as the region is prone to sectarian violence, including a recent killing of Shi’as in Naltar Valley in March 2021;

    ·Sunni extremists target passenger vehicles on the Karakoram Highway and buses have been stopped whereby Shi’a Muslims have been identified and killed based on their religion;

    ·The applicant’s identity as a Shi’a Muslim from Punjabi based on his name, identity card, residential documents and driver’s licence puts him at risk as a recognisable Shi’a Muslim; and

    ·The applicant has no family connections outside of Punjab and will not be able to support himself and lacks experience to work in a highly self-motivated environment.

17. The Tribunal notes that the constitution of Pakistan, namely Article 15, guarantees the right of freedom of movement and that the DFAT report states that internal migration is widespread and common. Therefore, the applicant does not face a real chance or a real risk from any legal or other barriers to entry into and to settle in Gilgit-Baltistan, regardless of whether the applicant has visited the region in the past.

18. The applicant’s representative has described the Gilgit-Baltistan province proposed by the Tribunal for the applicant’s relocation as part of the disputed Jammu and Kashmir region controlled by Pakistan. The Tribunal acknowledges that the recent history of the region and its geopolitical significant is worth canvassing in more detail.

19. Gilgit-Baltistan borders the People’s Republic of China, Afghanistan and India. The Tribunal does accept the region has been and remains disputed. However, there are no meaningful disputes between China with whom Pakistan signed a border agreement in 1963 when Pakistan gave over its part of Kashmir (also known as Trans-Karakoram Tract). China and Pakistan have also signed an agreement on a hydroelectric project in 2009.

20. Afghanistan and Pakistani Gilgit-Baltistan share a common boundary inherited from the 1893 Durand Line. This left a narrow strip of land ruled by Afghanistan as a buffer between the two empires, which became known as the Wakhan Corridor in the 20th century. This boundary is not disputed and has been notably closed to regular traffic for more than a century.

21. The Tribunal finds Pakistan’s borders, disputed or otherwise, with Chana and Afghanistan as having meaningful relevance to the applicant’s circumstances in relocating to Gilgit-Baltistan.

22. The disputed territory between India and Pakistan has been more volatile since Partition in 1948. Prior to Partition, Jammu and Kashmir was a princely state and its status had not been resolved which led the two countries to fight over the region. After Partition, a ‘Line of Control’ was marked where the region is divided. The land on one side of the line is controlled by India, and the land on the other side is controlled by Pakistan. It is not a legally recognised international border but is the effective boundary between the two countries. The Line of Control originally marked the military front when the two countries declared a ceasefire on 1–2 January 1949. It was formally named the Line of Control after the Simla Agreement, which was signed on 3 July 1972. The part of the region that is now under Indian control is known as the State of Jammu and Kashmir. The two parts that are under Pakistani control are known as Gilgit-Baltistan and Azad Jammu and Kashmir (AJK). The Line of Control is 740 km (460 miles) long.

101.   Since 1949, there have been three other India-Pakistan wars: in 1965, ending in a stalemate; in 1971, when India intervened to support East Pakistan (now Bangladesh) in which Pakistan suffered a decisive defeat; and in 1999, commonly known as the Kargil War, when Pakistan infiltrated the Line of Control after which the Indian Army successfully repelled. In the same year, a bilateral agreement, the Lahore Declaration, was signed to reduce tensions and provide nuclear protocols between the two South Asian rivals.

102.   In 2019, India granted Jammu and Kashmir independent union territory status, which led to Pakistan downgrading bilateral diplomatic and trade ties, which were partially restored. Pakistan’s support for provisional provincial status for Gilgit-Baltistan has moved away from its longstanding support for a plebiscite in all the territories of Kashmir, while facilitating Pakistan’s billion-dollar investments in the China-Pakistan Economic Corridor (CPEC) project. But this is fraught with problems for Islamabad. The 46 billion (in American dollars) CPEC is a network of highways, railway lines, oil pipelines, electrical power grids, fibre optic cables and special economic zones linking the Chinese trading hub of Kashgar in Xinjiang province with the Pakistani port city of Gwadar, which is located near the strategic Straits of Hormuz.

103.   While no comprehensive settlement about the Kashmir region has been reached, it is not outlandish that such a bilateral or a multilateral agreement can be reached and the status of Gilgit‑Baltistan would be finally settled in Pakistan’s favour. This is because it would be unrealistic for India to militarily occupy predominately Muslim Pakistani-occupied Kashmir, as it would be for Pakistan to absorb Indian occupied Kashmir, south of the Line of Control. Furthermore, there are more areas of common interest between Pakistan and India. Stability are prerequisites for economic development, including their respective meeting energy shortages, given both countries have suffered blackouts affecting industrial output. There are also precedents, such as the 1960 Indus Water Treaty, and when the two rivals peacefully settled the Rann of Kutch dispute over Pakistan’s Sindh province and India’s Gujarat state in 1965.

104.   In so far as this geopolitical background to the region is relevant to the applicant’s claims, the representative has implied that this part of Pakistan is so unstable that it represents an appreciable risk to the applicant or that it is inappropriate, unreasonable and impracticable for the applicant relocate there. However, the Tribunal does not accept this.

105.   It is the Tribunal’s assessment, however, that the Gilgit-Baltistan region is relatively stable, where a conflagration between India and Pakistan is not reasonably foreseeable. Moreover, the joint economic projects with China will assist the applicant’s endeavours to find economic opportunities as the region grows. In this regard, the Tribunal notes that the representative claimed that ‘[a] sense of neglect, exploitation and discrimination prevails among the local population; their semi-autonomous region was not included in the CPEC negotiations and an “atmosphere of secrecy and confusion” encircles the whole project.’ However, this analysis offers little relevancy to the applicant’s circumstances as he is relatively young, educated and without any dependants, and will be able to access employment opportunities, including government jobs with the Federal Government. In this regard, the Tribunal notes that DFAT has no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector.  Neither does the Tribunal accept the applicant’s claimed that he will face an appreciable risk of serious harm or significant harm based on being ethnically Punjabi, including in combination with this religion, in seeking work, including in government jobs, as there is no country information to support this claim. (The most recent DFAT report mentions that Punjabis make up around 44 per cent of Pakistan’s overall population and only militants from Baluchi separatist movements have targeted Punjabi settlers in Baluchistan Province based on their ethnicity).

106.   Relevant to the Tribunal’s assessment that Gilgit-Baltistan is an appropriate area within Pakistan for the applicant to relocate is that this region is Pakistan’s most populist tourist destination, as discussed in the hearing. Due to the relative high levels of security within Gilgit-Baltistan, Pakistanis have made the region among their favourite destination. According to 2017 data available with The Region Initiative (TRI), over two million domestic tourists mostly from Punjab visited Gilgit and Baltistan during the summer season of 2017 (May to August).[6] The CPEC is also making an impact on developing local infrastructure in the region. This includes the construction of all‑weather airports in Gilgit and Skardu to boost tourism. Gilgit and Skardu are the two main hubs for all mountaineering expeditions in Gilgit-Baltistan, known among foreign tourists for its stunning beauty and distinguished mountains. Many tourists choose to travel to Gilgit by air since the road travel between Islamabad and Gilgit via Karakoram Highway (KKH) takes nearly 24 hours, while the air travel takes only about an hour. Construction of all-weather airports would be instrumental to expanding the tourism industry. The flight to the region is considered one of the most scenic flights of the world as its route passes over Nanga Parbat and the mountain’s peak is higher than the aircraft’s cruising altitude.[7]

[6] Half million domestic tourist plan to visit Baltistan in autumn season, DND, 16 September 2017, Tourism growth in Gilgit-Baltistan on the fast track, by Syed Falze-E-Haider, Pakistan & Gulf Economist, 26 February 2018,  The Tribunal acknowledges that Gilgit-Baltistan has not been immune from anti-Shi’a Sunni extremism and sectarian violence. This includes the recent Naltar Valley incident in March 2021, which reported as many as six people were killed and seven others injured. According to the report from VoicePK.net, those killed and injured were civilians belonging to the Sunni community while travelling inside a Shi’a majority area. The district has a history of land disputes which have resulted in killings in the past, Some 18 months prior to the March 2021 incident, two Shi’a youths were ambushed and massacred by assailants.[8] However, the incident offers little relevancy to the applicant’s circumstance given, if relocated to the region, he would not be directly part of any longstanding land disputes between Shi’a and Sunni communities.

[8] The Rise in GB After Naltar Killing, by Hamid Riaz and Hassan Raza, VoicePK.net, 26 March 2021.

108.   The Tribunal assesses that the country information about the Gilgit-Baltistan region does not indicate sectarian violence is not to so frequent and widespread. The worst incidents occurred in 2012 when 18 Shi’a pilgrims were killed in the Kohistan district in February 2012 and another 20 Shi’as were killed in the Chilas district in April 2012. As the DFAT report has stated, long spells of no reported sectarian attacks have been noted.

109.   The available country information about Gilgit-Baltistan above indicates a security situation and sectarian violence is relatively benign compared to many parts of the country which underpins its economic prospects. While there are ongoing challenges of anti-Shi’a sectarian violence in Gilgit-Baltistan, the rate of sectarian terror and other violence towards Shi’a has invited the Tribunal to consider that the chances of serious harm are remote and insubstantial. With Shi’a Muslims making up a plurality in this region, it is the Tribunal’s assessment that the applicant does not have an appreciable risk or a real chance of serious harm from terrorist attacks and sectarian violence targeting Shi’as. This includes taking into account that the applicant’s allegiance to his Shi’a faith is identifiable by his identity documents or his personal nomenclature. The Tribunal finds that his former role in the Punjab in which he has held a notable role in the past in participating in the administration of a Shi’a community organisation and in festivals and events in Lahore prior to his departure from Pakistan for Australia does not enliven or heighten him as having an appreciable risk of serious harm in Gilgit-Baltistan, even though Sunni extremists operate in the area. Nor is the applicant’s profile based on his ethnicity as Punjabi in combination with his faith increases his chances of facing serious harm in Gilgit-Baltistan. In sharing the same Shi’a faith and practices as the largest Muslim group in the region, the Tribunal finds the applicant will be able to practise his faith, including at Shi’a festivals, without having an appreciable of serious harm from sectarian violence and without having to modify his behaviour to avoid having a well-founded fear of persecution based on his religion or any other related Convention reason, in settling in Gilgit-Baltistan.

110.   It is the Tribunal’s further assessment that the economic environment in Gilgit‑Baltistan indicates it is among the most visited regions of Pakistan by local and international guests. It is not unreasonable to assume from this accepted feature of Gilgit-Baltistan that it does not present to the applicant a real chance of serious harm or a real risk of significant harm arising from either the general security environment, the general economic circumstances of the region or based on the sectarian violence into the foreseeable future. The Tribunal accepts that longstanding residents of the region bristle, as the applicant’s representative has argued, with the securitisation of the region, or that they have not had enough consultation from the CPEC or that the investment decisions are secretive or opaque. The salient fact remains this securitisation and the subsequent investment from CPEC is pivotal to the current growth and confidence in tourism and investment in infrastructure in the region, generating economic opportunities for both locals and those settling in the region from other parts of Pakistan.  Furthermore, the Tribunal does not accept that the applicant will face a real chance of serious harm arising from any systematic discrimination or denial of any basic services towards Shi’a Muslims in Gilgit‑Baltistan that would lead to him facing significant economic hardship or a denial of the capacity to earn any livelihood, whereby the denial threatens the applicant’s capacity to subsist, or any other serious harm. Economic opportunities for speakers of Urdu and other non‑indigenous /non-tribal languages who migrate to the region exist and are growing. Like any developing province in any generally neglected parts of a developing country, there are disputes about the pace and quality of infrastructure and the impact on the local character which may even exacerbate longstanding disputes. However, there is little meaningful relevancy to these disputes to the applicant’s economic circumstances. Neither does the applicant’s inability to speak any local languages represent him facing an appreciable risk of significant economic hardship, given the widespread use of Urdu and English.  The Tribunal accepts the region has a relatively small population without the economies of scale of other Pakistani regions. Nonetheless, the region does have a growing services sector built around tourism and growing industries in aviation, transportation and engineering. The Tribunal does not accept the submission that the applicant will be restricted to the region’s tourism or agricultural sector or government jobs by relocating to Gilgit-Baltistan. Should the applicant seek work in these sectors or any other sectors, the Tribunal does not accept that he will be denied work given the applicant has no experience in these sectors or that it represents a real chance of serious harm. After all, the region receives millions of visits from Punjab Province every year, generating low-skilled jobs in the hospitality and other sectors. Furthermore, the applicant’s family will be able to materially or emotionally support him from Lahore, including by travelling to the region to visit him, both while seeking work and accommodation and afterwards.

111.   The Tribunal notes that the applicant raised a residual claim in the scheduled hearing, namely that the applicant would be too old, as someone who is 30 or older with no or little experience. In the context of the applicant’s working continuously, more or less, since his graduation with a bachelor’s degree in Pakistan as well as in Australia, this indicates the applicant, who is sufficiently healthy and relatively young, could find employment and make a livelihood of any kind without living below subsistence levels. That the applicant should be aware that he may be overlooked due to his lack of professional experience for his chosen profession in the financial sector, this is not relevant in assessing his chances of serious harm for refugee status, or whether his risk of significant harm is as required by the Act’s complementary protection provisions. The Tribunal does not accept he will face age discrimination leading him to experience an appreciable risk of economic destitution by relocating to Gilgit-Bastian or that his age renders his relocation to this region as unreasonable, in the sense of being impracticable.

112.   Having taken all the relevant aspects of the applicant’s personal circumstances and the country information into account, the Tribunal accepts the applicant will face challenges in finding work and accommodation. Should the applicant relocate to Gilgit-Baltistan, he would be settling in the region as a relatively young and healthy single man with no dependants and as a tertiary graduate who speaks Urdu and has some limited English. Indeed he will have a literacy capacity better than much of the local population. Should the applicant settle in Gilgit‑Baltistan, it would not be unreasonable, in the sense of being impracticable, for the applicant to settle in Gilgit-Baltistan based on the applicant’s personal economic and linguistic circumstances, the region’s standards in economic development and its relatively benign security situation, as the applicant’s overall circumstances do not represent the applicant facing a real chance of significant economic hardship or the denial of basic services or the denial of capacity to earn a livelihood whereby the denial threatens the applicant’s capacity to subsist, or any other serious harm listed under s.92(2) based on his religion, any related Convention reasons or any other claimed reasons.

113.   When taking the applicant’s circumstances as a whole, along with the available country information, the Tribunal does not accept the applicant will face an appreciable risk of serious harm whereby harm amounts to being a threat of a loss of life and liberty, significantly physical harassment or significant physical ill-treatment of the person, or whereby he faces an appreciable risk of significant economic hardship, being denied basic services or any other harm non-exhaustively listed under s.92(2) involving serious harm to the applicant as required by s.92(1)(b) for any Convention reason, including his religion, if he were to relocate to Gilgit-Baltistan province into the foreseeable future.

114.   Considering the independent country information and the applicant’s individual claims and accepted circumstances, it is the Tribunal’s finding that the applicant’s accepted circumstances means the applicant’s settlement to Gilgit-Baltistan would not render relocation for the applicant unreasonable, in the sense of impracticable.

115.   Based on the totality of the evidence, the Tribunal does not accept on the evidence before it that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons, including based on his religion, or any other reasons, if he resettles outside of his home area of Punjab Province to Gilgit-Baltistan Province, now or in the reasonably foreseeable future.

116.   Accordingly, the Tribunal considers there is, objectively understood, no appreciable risk of the occurrence of the persecution which the applicant fears within the Pakistani Province of Gilgit‑Baltistan Province in respect to the Refugees Convention.

117.   The Tribunal does not accept on the evidence before it that the applicant has a well‑founded fear of being persecuted for one or more of the five Convention reasons if he resettles outside of his home province of Punjab by relocating to Gilgit-Baltistan Province, now or in the reasonably foreseeable future, and he does not satisfy s.36(2)(a) or Article 1A(2) of the Convention.

118.   Having considered the applicant’s claims cumulatively as well as individually, the Tribunal finds that there is no real chance of persecution for a Convention or any other reason should the applicant return to the Islamic Republic of Pakistan now or in the reasonably foreseeable future, or that the applicant will encounter serious harm capable of amounting to persecution.

Relocation of the applicant for the purposes of s.36(2B)

119.   The Tribunal has already made findings that the applicant has a well-founded fear of persecution based on a Convention reason, namely his religion, if he were to return to his home area of Punjab Province. This assessment was a ‘real chance’ finding.

120.   Sections 36(2)(aa) and (2B) refer 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.

121.   As the ‘real risk’ test is the same as the ‘real chance’ standard, the Tribunal accordingly has substantial reasons to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to his home area, will suffer a risk, equal to or more than a real risk, of significant harm based on his religion, if the applicant were return to his home area of Punjab Province.

122.   Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. 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 & Crennan JJ, Callinan J agreeing.

123.   The Tribunal has made a number of findings that there is not a real chance of serious harm for a Convention reason for the applicant relocating to Gilgit-Baltistan. Based on the considerations and findings as made above, the Tribunal finds that there are no substantial reasons for believing there is a real risk of significant harm, including arbitrary loss of his life or torture, arising from a combination of the applicant’s economic and personal circumstances and the same evaluation of the economic opportunities in Gilgit-Baltistan and the security situation for Shi’a Pakistanis in that region.

124.   The Tribunal finds that there is no suggestion of the applicant facing capital punishment if he were to return to this region.

125.   With regards to whether there is a real risk the applicant will be subjected to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ arising from the applicant’s generally weak claims of prospective financial destitution based on the applicant’s various claims about his age, education, physical distance from his family in Punjab and linguistic barriers if the applicant were to settle in Gilgit-Baltistan, the Tribunal finds that the risk is remote and insubstantial and not a real risk of such harm.

126.   Having considered all the claims and the evidence before it, the Tribunal finds that there is no appreciable risk of significant harm of any kind if the applicant were to be removed from Australia to another part of Pakistan, namely Gilgit-Baltistan Province. Based on the same reasoning about relocation for the purposes of the Refugees Convention, the Tribunal is satisfied that it would be reasonable, in the sense of being practicable, for the applicant to resettle within Gilgit-Baltistan, as required by s.36(2B)(a).

127.   Noting that the Tribunal is satisfied that authorities have maintained levels of sectarian violence in Gilgit-Baltistan to negligible levels amounting to the applicant facing a remote or insubstantial risk of significant harm based on his religion, the Tribunal further finds that there is taken not to be a real risk that the applicant will suffer significant harm as the applicant could obtain, from an authority operating in Pakistan, protection such that there would not be a real risk that the applicant will suffer significant harm, as required by s.36(2)(b).

1. As the Tribunal does not accept the applicant has a real risk of significant harm for the reasons claimed, it is not required to make a finding pursuant to s.36(2B)(c): there is taken not to be a real risk that the applicant will suffer significant harm as the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

129. Therefore, the Tribunal is satisfied that the applicant will not suffer significant harm as the Tribunal finds it reasonable for the applicant to relocate to another area of the Islamic Republic of Pakistan outside his home state, namely Gilgit-Baltistan Province, in accordance with s.36(2B) of the Migration Act.

130.   Based on all available information and evidence, the Tribunal is not satisfied 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 of significant harm. The Tribunal does not accept that the applicant will suffer harm by way of his being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).

Conclusion

131.   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).

132.   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).

133.   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

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

Brendan Darcy
Member