1729147 (Refugee)

[2019] AATA 4787

1729147 (Refugee) [2019] AATA 4787 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729147

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Luke Hardy

DATE:24 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2019 at 12:21pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – minority Shi’a Muslim in Sunni majority region – fear of persecution and extremist attacks – traditional wedding to Sunni woman in Australian – fear of honour killing – ethnicity – Pashtun minority tribe – inheritance dispute with siblings – country information – continuing attacks by extremists – real chance of significant harm – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. [The applicant] claims who claims to be a Sunni Muslim, ethnic Pashtun of the Turi tribe from the former federally-administered Kurram Agency, now incorporated into Khyber Pakhtunkhwa (KPK) province in Pakistan.

3. [The applicant] arrived in Australia as an “unauthorised maritime arrival” [in] July 2012. He underwent an entry interview on 20 August 2012. He was allowed to lodge a protection visa application on 7 December 2012. He made his application on the basis of facing a real chance of serious harm or a real risk of significant harm from the Taliban and other Sunni extremists on return to Kurram Agency, due to his Shi’a religion, Turi tribal membership and adverse political opinions imputed to him by the Taliban and other Sunni militant groups because of his membership of the Turi tribe, his Shi’a religion, residence in Parachinar and occupation involving cross border trading in nearby Afghanistan.

4. A delegate of the Minister interviewed him on 20 March 2013 and decided to refuse to grant the visa on 9 July 2014. [The applicant] subsequently sought review by the former Refugee Review Tribunal.

5. The Refugee Review Tribunal merged into the MRD of the AAT as of 1 July 2015. The Tribunal, differently constituted, affirmed the delegate’s decision on 19 July 2016.

6. [The applicant] sought judicial review of the previously-constituted Tribunal’s decision and, [in] October 2017, the Federal Circuit Court remitted the matter to the Tribunal to be re-determined according to law. The matter is now before me, as the presently-constituted Tribunal.

7. [The applicant] appeared before the Tribunal on 22 May 2019 to give evidence and present arguments. He was accompanied by his advisor, a registered migration agent. The Tribunal also received oral evidence from Ms [A] who evidently married [the applicant] in a Shi’ite Nikah ceremony in Melbourne [in] September 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto-English medium.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

8. The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

9. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   Claims to the former Immigration Department

10. [The applicant] claimed to have been born in the village of [Name] in the environs of Parachinar city in the former Kurram Agency. He claimed to have operated a business trading [products] across the border in and out of neighbouring Afghanistan. He said at his entry interview that the Taliban had placed his name on a list due to his having conducted cross-border commerce near his village. He claimed that in 2012 there were three suicide bombings perpetrated by Taliban extremists in Parachinar. He claimed his mother died from the stress of events in Parachinar in 2012.

11. [The applicant] claimed he would be persecuted by the Taliban on return to Pakistan due to his being a tribal Turi and ethnic Pashtun from Parachinar. He said the Taliban controlled all the roads in the region and that travel by road out of Parachinar was only done in army-escorted convoys. He said soldiers often fled during Taliban attacks.

12. In evidence to the Minister’s delegate, [the applicant] also said he feared being persecuted by the Taliban due to his Shi’a religion and in the event of resuming his occupation as a cross-border trader. He claimed to have heard that the Taliban had put his name on a Taliban hit list, as it were, due to his trading activity. He evidently told the delegate that a friend called [Mr A], who had heard this from another friend called [Mr B], told him.

    Evidence to the previously-constituted Tribunal

13. [The applicant] claims to the previously-constituted Tribunal were more or less the same claims previously presented to the Department.

14. [The applicant] claimed to the previously-constituted Tribunal that in the normal course of his work he used to drive the goods he purchased in a bazaar in Afghanistan to shop keepers in Parachinar city.

15. [The applicant] claimed that Islamist extremists groups Al Qaeda and Islamic State (IS) had become involved in the struggle to control Kurram Agency. However, he told the previously-constituted Tribunal that he had never personally encountered any Taliban militants: he had only witnessed the firing of rockets overhead, such events causing occasional community evacuations to temporary locations farther away from the border.

16. [The applicant] evidently provided some details to the previously-constituted Tribunal, such as how he ascertained that the Taliban had placed him on a hit list, that were not consistent with details he had provided to the delegate about similar matters. He told the previously-constituted Tribunal that he was told about being on the hit list directly from [Mr B], i.e., not through [Mr A].

17. [The applicant] also gave conflicting information to the delegate and previously-constituted Tribunal about whether [Mr B] had been killed by the Taliban whilst operating a business similar to his.

18. On the evidence before it, the previously-constituted Tribunal did not accept that [the applicant] had been or would be of any individual interest to the Taliban or other extremist groups. The previously-constituted Tribunal also made an alternate finding to the effect that [the applicant] did not “need” to be a trader in goods at or across the border with Afghanistan and could find another way of earning income if he wished.

    Reasons for remittal

19. The Federal Circuit Court took issue with the previously-constituted Tribunal’s apparent adoption of a test regarding “need”, and found that the previously-constituted Tribunal erred in not considering if it would be reasonable for [the applicant] to work in a different occupation to avoid being persecuted by the Taliban. This is an interesting finding, as it appears to relate to what had been, in the first place, an alternate finding on the part of the previously-constituted Tribunal, which had already found confidently that it was not satisfied that [the applicant] was known, or of any potentially relevant interest, to the Taliban or other Islamist groups in Pakistan, let alone on any “hit list”.

    Evidence to the presently-constituted Tribunal

20. [The applicant] has presented evidence of suffering stress, anxiety and depression. Most recently he has been put on a new medication by his medical practitioner and, according to material submitted to the Tribunal, he is still in the process of adjusting to that medication, the side effects of which include agitation and sleeplessness. I accept that this information is reliable and I have taken [the applicant]’s problems of adjusting to his medication into account in my assessment of his ability to give meaningful evidence in this matter.

21. [The applicant] gave evidence subject to an Affirmation. The subject of the availability of drinking water received some attention at the beginning of the hearing because the latter was being conducted during Ramadan. [The applicant] said he does not practice fasting. My impression overall is that he is nominally Shi’a but not particularly religious. [Ms A] gave evidence subject to an Oat on the Koran.

22. At the hearing, I sought up-to-date information from [the applicant] about his family back in Pakistan. He said he has [a number of] brothers all living in [Village] where [number] work as [produce] farmers, one, the eldest, has retired and the other is too sick to work. He said he used to work as a farmer in the past. He said the land on which he and his brothers farmed was adjacent to their house in [Village]. I asked [the applicant] to tell me when he last spoke with his brothers and he said they spoke about a month or two before the Tribunal hearing. He said that the usual method of communicating with his brothers involved them making a “missed call” and his returning that “missed call”. I asked him what his brothers had discussed with him, and he said they talked about their lives in [Village], about not having enough money and about going to the doctor, etc. He said his brothers told him they do not go into Parachinar city because they did not trust the situation on the roads and still feared they might be attacked, robbed, looted or even kidnapped for ransom. He said the security situation affects the population generally in and around the region of Parachinar.

23. I asked [the applicant] if it would be reasonable for him to return to farming in [Village] in the event of return to Pakistan and he said there is not enough land available for all [working] brothers to make money from farming. He said that although his brothers earn their living from farming they cannot leave [Village]. He said that roads are not safe from kidnappers and there are bombs and landmines in nearby mountains. I put to [the applicant] that, in evidence to the Department, he said he had been able to move between [Village] and Parachinar over a number of years in the normal course of his occupation when he was trading there, and yet he had evidently never encountered extremists or militants. In reply, he denied having been able to travel between [Village] and Parachinar. I put to him that he had evidently been able to travel from Parachinar to Lahore, this having been just one example of his having been able to travel to Parachinar from [Village]. In reply, he said, “Yes.” When I asked him why he and his brothers would not be able to travel between [Village] and Parachinar in the reasonably foreseeable future and he said that back in the past his family was a famous and prominent one, due to its running a business selling [produce obtained from a location] in Afghanistan. He said that the family’s reputation had helped it move around more freely. He said the [produce] business, however, had long ago closed, due to fighting in region at the time.

24. I put to [the applicant] that in the time since the previously-constituted Tribunal made its decision on his application, and in the period since the matter was remitted by the Federal Circuit Court, the district known as Kurram Agency and the rest of the Federally Administered Tribal Areas in general had been incorporated into KPK province and come under the control of state authorities including the army and both national and provincial police and courts, and giving tribal communities representation in provincial and national parliaments.[1] In reply, [the applicant] said he was unaware of the change. I put to him that since a pushback in 2012-14 the Pakistan authorities now controlled KPK province, having reduced the Taliban to a rump and forced its remnant members, in the main, back across the border into Afghanistan. I put to him that the situation in Parachinar and the former Kurram Agency had reportedly improved.[2]

    [1] “Pakistan's National Assembly passes bill to merge FATA with KPK,” Arab News, 24 May 2018, “President signs KP-FATA merger bill ,” The Nation, 28 May 2018,  

    [2] DFAT, Country Information Report: Pakistan, 20 February 2019

25. In reply, [the applicant] said he was unaware that Kurram Agency had been incorporated into KPK province. It did not appear to have been a subject he had discussed over the telephone with his brothers. Responding to the suggestion that the security situation had improved in and around Parachinar, [the applicant] said there have still been recent instances of Taliban attacks and fighting with the army and community militias. He said that there had been two suicide bombs in Parachinar in recent weeks, but then corrected this information saying that the authorities had posted notices in Parachinar advising the population to be on the lookout for two suspected suicide bombers who had been sent into the city by the Taliban. He said he had heard this from friends. When I asked for more detail, he said it had been a rumour. He also said that two [Village] villagers had recently been kidnapped, telling me he had heard this from his brothers.

26. I asked [the applicant] about the alleged “death list” or “hit list” that was alleged to have included his name back in or around 2012. I put to him that evidence he had given the previously-constituted Tribunal and previously to the delegate appeared to have been inconsistent. In reply, he said he had been disadvantaged at the hearing before the previously-constituted Tribunal because they had had to rely on a telephone interpreter in Sydney who did not speak the same dialect of Pashto as he did. 

27. I put to [the applicant], on the basis of independent country information, that whilst the Taliban had assassinated some prominent Pakistani officials in recent months and years, their activities in KPK province appeared limited to sporadic bomb attacks and did not appear to include targeted assassinations of civilian border residents like him. I put to him that on this information, it was hard to see that the Taliban, which had not killed him in the past, was capable of or interested in locating and killing him after so many years. In reply, [the applicant] merely said that the Taliban is still present.

28. On the day before the hearing, [the applicant] submitted a statutory declaration introducing  two new claims. The first claim relates to his relationship with his brothers back in [Village] village. He claimed that his eldest brother had “cast” him out of the family because he had left for Australia where he now supposedly lived a “wealthy life” and was reneging on a “duty” to assist his extended family financially. He said that both his parents were now deceased, his mother having died in 2013 and his father in 2015, as detailed in other submissions, and that according to tradition their assets including land were bequeathed to their children communally. He said that he, however, had somehow been excluded from the inheritance.

29. [The applicant] claimed that if he returns to Pakistan he will contest his siblings for his share of the “now distributed inheritances”. He said that because the bequest had proceeded according to tradition, he would not be able to rely on lawyers to help him. He said he would be destitute if he did not challenge his family. He said that even if he does not fight for his inheritance, his family will suspect that he intends to do so. He said that this will not be resolved without a show of force from his eldest brother or himself. He said that feuds in his village are dangerous and violent.

30. Whereas his father died in 2015, [the applicant] told me this conflict with his brothers had been going on only for the last year. I expressed curiosity about this having only been happening in the last year, given that his parents died several years earlier. In reply, [the applicant] said his brother had asked for $[amount]. I asked him when they had last spoken together and he said  it had been one or two months before the hearing.

31. I put to [the applicant] that earlier in the hearing he had described a telephone call with his brother in Pakistan that had sounded as though his brothers had merely been talking about how life was just going on, day-to-day: he had not described demands or disagreements. In reply, he said that those more mundane topics had been the subject of some earlier telephone call, and not the last. I put to him that he had squarely identified these as topics of the most recent telephone call and, more to the point, had not mentioned that the last telephone call had involved any of the acrimony to which he was now alluding. In reply, [the applicant] said that he had recently married in Australia and had expected his family to pay for the wedding, as per tradition, only to be told he was cast out of the family altogether for not having sent them any money from Australia. He said it had been his traditional right to ask for financial support.

32. [The applicant went on to say that if he returns to [Village] there might be a fight and it might involve knives, as a knife had been produced in a clash between two of his brothers in the past. He said the brother with the knife was the one with whom he speaks on the telephone: his third eldest brother. He said the fight had been between that brother and the eldest. He appeared to confirm, though, that neither had ever been injured by the other with a knife.

33. The other new claim in [the applicant]’s statutory declaration relates to his having been married in Australia to Ms [A], a Sunni Punjabi from Lahore. He and Ms [A] told me that she remains a Sunni. He said that as theirs is an inter-sectarian marriage they face social hostility in Pakistan and even a risk of “honour killing”.

34. [The applicant] and Ms [A] provided a copy of a certificate acknowledging their marriage in a Nikah (traditional wedding) ceremony under a Shi’a imam (and registered marriage celebrant) in [Suburb], Victoria [in] September 2018. On the evidence before me, there appeared to be no reason not to be satisfied as to the marriage having taken place. [The applicant] and Ms [A] explained that, as both are non-residents in Australia, their marriage is not state-registered. Ms [A] described herself as coming from a rather well-to-do family with strong social and political networks. She provided information about anger in her family in response to the marriage, mostly from her father, with her mother having tired up to a point to mollify him. Assisted by the advisor, the couple argued that Ms [A] obtains no economic or migration advantage from marrying [the applicant] and that he obtains no migration advantage from marrying her, as she only holds a temporary visa, and, now that her father has passed judgement on her having married him, no economic advantage either.

35. I asked for evidence to support the claim in the statutory declaration about the possibility of either being killed in an “honour killing”. Ms [A] said she had only been told about this over the telephone. I asked [the applicant] and Ms [A] if it might be reasonable to relocate away from her family and she said she feared her father might be able to use business and political contacts to locate her and [the applicant]. I asked her for details about her family’s political contacts and she was admittedly vague, but said she was confident that given some time after the hearing she would be able to provide more information about her late grandfather’s political activity and the name of the party in which her extended family has been involved.

1. Initially [the applicant] said he and Ms [A] face some risk of harm from her family but not from his. He said that neither he nor Ms [A] really know what her family is thinking. I put to [the applicant] that this claim, as expressed, appeared to be baldly speculative and, in addition, seemed not to sit with the claim in [the applicant]’s statutory declaration about Ms [A]’s father having threatened the recovery of his family’s reputation through “honour killing”. In response, Ms [A] said her mother had told her that her father had said he wanted to kill her. Then [the applicant] told me that he had just been saying to me that he feared harm from his family. Recalling specifically that he had said that he and Ms [A] face some risk of harm from her family but not from his, I put to him that he appeared to have simply changed his evidence.

2. When I raised the question of whether relocation might be a reasonable and safe option for them, Ms [A] said, “Not in Punjab.” She said her father does not regard Shi’as as Muslims and therefore considers her relationship sinful. When I indicated to her that her response ”Not in Punjab” evidently did not cover places outside of Punjab, she said, “Same.” This was when she said her father had some influence throughout Pakistan due to her late grandfather’s involvement in politics. She also said her father has some contacts in Pakistan criminal underworld. She asked for more time to provide evidence.

3. In closing comments, the advisor said that violence against the Turi in Pakistan had recently been going through “peaks and troughs”, essentially appearing to argue that, if there appears presently to be a “trough”, one should not presume the situation is trending towards a long-term diminution of such violence.

4. The advisor asked for two weeks to make further factual submissions. I granted the request. He asked for at least a month to provide more detailed expert psychological reporting as to [the applicant]’s ability to be a useful and lucid witness in this matter and, on consideration of the request, I said that the two-week extension would stand, although I would be open to entertaining additional time for further medical and psychological reporting in the event of not being satisfied with the reports submitted hitherto. As indicated in paragraph 20 above, I accept that [the applicant] had some difficulty providing detail in his oral evidence and that this could be due to his issues with medication. However, where he contradicted evidence provided only minutes before, I am confidently of the view that the original statements are reliable, especially in light of the open nature of the questions that precipitated them, and that the subsequent contradictions are not.  

   Independent country information

5. I have had regard to the following information from DFAT[3], portions of which I have highlighted for relevance:

   [3] DFAT, Country Information Report: Pakistan, 20 February 2019

   Turis

   3.13  The Turi tribe is a Shi’a Pashtun tribe of around 500,000 people. Turis are not generally distinguishable from other Pashtuns by appearance, but are identifiable by tribal names, accents, and residency in known Turi areas. Most Turis live in Parachinar, lower and upper Kurram Agency, Orakzai, DI Khan, Kohat, and Hangu. Concentration of Turis in small geographic areas, particularly in and around Parachinar and Kurram Agency, renders Turi communities vulnerable to attack.

   3.14  The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a—especially in Parachinar, rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan. Between 2008 and 2014, Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith (see Shi’a). Militants frequently stopped and killed Turis travelling on roads. A significant spike in profiling and targeted killings occurred between 2009 and 2014 along the Tall-Parachinar road, which links Kurram Agency and Peshawar.

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

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

   ·on 31 March 2017 a suicide bomber attacked an imambargah [Shi’a mosque] in Parachinar; and

   ·on 24 June 2017 two devices detonated in a market in Parachinar.

   The three attacks killed more than 120 people.

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

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

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

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

   3.20  Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes. Turis claim a Turi child died at a North Waziristan checkpoint because security officials refused the family’s request to cross to visit a hospital. DFAT is unable to verify this claim.

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

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

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

   3.24  DFAT assesses that Turis a face similar risk of official discrimination as other Pashtuns based on ethnicity …, and no additional risk of official discrimination based on their religion ...

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

   3.26  DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups…

   3.111  DFAT assesses that Shi’a [merely as a group on their own] in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA.

6. The International Crisis Group recently published the following report about the situation in areas formerly within FATA and now part of KPK province, parts of which I have highlighted due to their relevance:

   FATA’s merger with Khyber Pakhtunkhwa followed years of military operations against Tehreek-e-Taliban (TTP, Taliban Movement of Pakistan) militants. Those operations broke TTP’s hold over most of the tribal belt but also displaced millions of residents, destroyed homes and ruined livelihoods. Security in those areas has improved but remains fragile. Afghan insurgents, including Afghan Taliban factions and allied militants, maintain sanctuaries in FATA from which they conduct operations in Afghanistan. Human rights abuses, particularly enforced disappearances, continue, and the military still controls virtually every aspect of public life…

   Even critics of the military operations recognise that they have disrupted TTP networks in FATA.

   The tribal areas are no longer the hub for transnational jihadists that they were some years ago, when militants from across the world rubbed shoulders with their Pakistani counterparts in training camps.

   Yet the military has neither killed nor captured all major TTP leaders. Some relocated to Afghanistan. Others moved to nearby Khyber Pakhtunkhwa districts, such as Tank and Dera Ismail Khan, and revived their networks there. These areas have seen increased extortion of local businesses, killing of leaders seen as anti-TTP and other perceived opponents, and kidnapping for ransom.

   Other TTP factions with close ties to the Afghan Taliban, such as those led by Gul Bahadur and Sadiq Noor, appear to have moved their militias from North to South Waziristan.

   Well-informed sources contend that Afghan militants, too, first relocated to other parts of the tribal belt, such as Kurram, whence they had easy access to Afghanistan’s Khost province, and have now returned to sanctuaries in North Waziristan.

   “The Haqqani network [an Afghan Taliban faction long based in FATA] owns property worth billions of rupees in North Waziristan”, said Latif Afridi, a senior lawyer and Awami National Party leader from Khyber. “They started there and are still there. They only temporarily relocated to FATA’s Kurram and Hangu [an adjoining Khyber Pakhtunkhwa district]”.

   To consolidate control, the military has relied on “peace committees”. In reality, these are pro-state militias, comprising what many FATA activists refer to as “local thugs”, that have fuelled conflict … While the military disbanded some of these militias due to local opposition, those that remain continue to target opponents and indulge in criminal activity, including drug and arms smuggling, with few restrictions.

   That militant networks have revived is evident in the higher rates of violence and casualties in the past year. A FATA-focused NGO noted a 16 per cent rise in militant attacks and a 37 per cent rise in the number of casualties in 2017, compared to the year before. Many such attacks have taken place in tribal agencies that the military had supposedly rid of militants, such as Mohmand and Bajaur. Kurram, with its large Shiite population, was particularly volatile, with at least 115 people killed in three attacks in the first six months of 2017 – two of them targeting Shiites.

   Attacks have continued this year: in January, five civilians were killed in a bombing in Kurram; in February, a military convoy was attacked in North Waziristan; the same month in Bajaur, an anti-Taliban leader was killed. Militants have also resumed targeting girls’ schools and threatening families who send their daughters to school.[4]

   [4] “Shaping a New Peace in Pakistan’s Tribal Areas,” International Crisis Group, Briefing 150 / Asia, 20 August 2018,

7. Attempts to inflict harm on Shi’a communities have continued with mixed success in the former Kurram Agency since the Pakistan authorities took control of the former FATA. In June 2018. One example is the foiling of a bomb plot in a fruit market in the town of Sadda.[5]

   [5] “Security forces foil terror bid in Kurram,” The News, 13 June 2018,

8. I note that a bomb was exploded in a tribal area market in Orakzai Agency, which sits beside the former Kurram Agency in KPK province, killing over thirty persons.[6] Whereas this attack occurred on the other side of Parachinar from where [Village] is situated, it has nevertheless been viewed in Pakistan as evidence of ongoing capacity on the part of the Taliban to conduct terror attacks on tribal minorities in the area.

   [6] “Orakzai bomb blast toll rises to 33, with 56 injured at Friday market,” Samaa, 23 November 2018,

9. Pakistan Today, reporting on 30 May 2018, gave a positive view of the merger of FATA into KPK province, with particular reference to the benefits that the rule of law would bring over time.[7]

   [7] “Greater KPK,” Pakistan Today, 30 May 2018,

10. UrduPoint reported[8] a small decrease in crimes such as kidnappings in 2018 compared to 2017:

    Seven incidents of kidnapping for ransom took place during the current year as compared to 20 in the year 2017. In crime against property 245 cases of robberies and 62 cases of extortion occurred during the current year as compared to 263 cases of robberies and 71 cases of extortion.

    [8] “KP Witnesses Reduction In Crime Rate In 2018: Police,” UrduPoint, 20 December 2018,

11. DFAT’s Smartraveller page, however, updated on 5 March 2019 and marked current as at 24 May 2019, provides the following advice for the entire KPK province in Pakistan, with the exception of the Chitral city district: “We advise against all travel here due to the very high risk.”[9] DFAT provides the same advice in respect of all areas bordering with Afghanistan.

    [9]

12. The US State Department has issued a similar warning:

    Reconsider travel to Pakistan due to terrorism. Some areas have increased risk. Please read the entire Travel Advisory.

    Do Not Travel to:

    •Balochistan province and Khyber Pakhtunkhwa (KPK) province, including the former Federally Administered Tribal Areas (FATA), due to terrorism and kidnapping.

    •The Azad Kashmir area due to terrorism and the potential for armed conflict.

    Terrorist groups continue plotting possible attacks in Pakistan. Terrorists may attack with little or no warning, targeting transportation hubs, markets, shopping malls, military installations, airports, universities, tourist locations, schools, hospitals, places of worship, and government facilities. Terrorists have targeted U.S. diplomats and diplomatic facilities in the past, and information suggests they continue to do so.

    Terrorist attacks continue to happen across Pakistan, with most occurring in Balochistan and KPK, including the former FATA.

13. Human Rights Watch reports: “On July 13, [2018] … four people were killed and at least 32 injured, when the convoy of Akram Khan Durrani, a senior political leader of Muttahida Majlis-e-Amal (MMA), was targeted in a remote-controlled blast in Bannu district, Khyber-Pakhtunkhwa. Durrani survived.”[10]

    [10] “Pakistan: Events of 2018,” World Report 2019, Human Rights Watch,

    Findings in relation to s.36(2)(a) of the Act

14. I accept that [the applicant] is an ethnic Pashtun of the Turi tribe. I accept that he is nominally a Shi’a Muslim, even though the evidence suggests he is not “devout”; in any event, being a Turi from the former FATA region, he would, I find, be imputed throughout Pakistan to be a Shi’a Muslim irrespective of his individual beliefs.

15. On the inconsistent evidence before me, I am not satisfied that [the applicant]’s recent account of his brothers having fallen out with him, freezing him out of the family inheritance, is true. I give more eight to the regular, if somewhat infrequent, communications he has with his family in [Village], and the issues of common concern he says they discuss in the communications.

16. I am able to accept on the evidence before me that the marriage between [the applicant] and Ms [A] is a genuine one. At the very least, I am satisfied that the relationship brings neither of them any advantages economically or in term of visa status in Australia in the reasonably foreseeable future.

17. I accept that honour killings do occur in Pakistan within families where inter-sectarian and inter-religious marriages have occurred. I accept that penalties for such crimes can be light if imposed at all. However, I do not accept that all families and their social circles, even prominent, practicing Sunni Muslim ones, are beholden to the culture of “reputation” that might move them to threaten to kill their own relatives. In this particular case, [the applicant]’s evidence about Ms [A]’s family threatening to commit an “honour killing” is inconsistent and, on the evidence so far, I give it very little weight, although to be fair, I did grant Ms [A] two weeks to produce evidence of her father’s and relatives’ social and political networks, not that this on its own need necessarily mean that her family intends to kill her and/or [the applicant], or that it would have the ability to do so irrespective of where they reside in Pakistan.

1. [The applicant] claimed at one point that his own family would not be relevantly disaffected by his marriage to the Sunni Ms [A]; then he changed his claim but, on the evidence before me, I do not accept that the revised claim is factual. I do, however, accept that [the applicant]’s status as a Shi’a and his marriage to a Sunni woman could give rise to discrimination and harassment in the [Village] community and elsewhere in KPK and wherever they might try to settle in Pakistan. This is to say that I find that relocation in Pakistan would not be a reasonable option for [the applicant]; however, such a finding is not usually made unless it is already found that a protection visa applicant faces a real chance of being persecuted in his or her home region.

2. In [the applicant]’s case I do find that [the applicant] faces a chance of being persecuted in KPK province that I cannot dismiss as being merely remote. Much in the way of instances of serious harm specifically targeting Turi and Shi’a (and, logically, people who are both) has happened in the former Kurram Agency region since the previously-constituted Tribunal decided in mid-2016 to affirm the delegate’s decision. On the other hand, there is reported to have been some decrease in such instances of persecution by non-state agents since Pakistan incorporated Kurram agency and the rest of FATA into KPK province in mid-2018, but that said the former FATA region of KPK is widely-reported not yet to be secure and independent observers argue that it is too early to regard the are as generally safe. Both the US and Australian governments advise that it is extremely dangerous to travel on the roads in KPK province, and other reports indicate that this is because the Taliban and IS continue to target, or attempt to target, their traditional enemies: Westerners, non-Muslims, Shi’a and other non-Sunni.

3. I acknowledge Australian courts having ruled that states presumably including Pakistan are not required to guarantee the safety of their citizens from harm caused by non-state persons.[11] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.[12]  Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.[13]

   [11] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7,

   [12] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

   [13] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

4. However, violence in the former Kurram Agency region, in and around Parachinar, continues evidently to be selective, in its targeting of local Shi’a, as evidenced by the bomb attack in the Orakzai market in June 2018.  I give weight to the DFAT advice to the effect that although the downward trend in targeting Turis in KPK province is likely to continue in 2019, attacks and violence against them can and may still occur, with the effect that DFAT continues to regard Turis in the former Kurram Agency region as facing a “moderate risk of sectarian violence from militant groups, because of their Shi’a faith”. To be fair, I have interpreted a “moderate risk” in this context to be something captured in the notion of a “real chance”.

5. I am not satisfied on the evidence before me that [the applicant]’s individual name was ever on a Taliban “death list”, but this finding, even though it involves negative inferences as to his overall credibility with regard to several substantive claims in this matter over time,  does not take away from my overall findings in his favour.

6. Hence, on the evidence before me, I am satisfied that [the applicant] faces a real chance of being persecuted in KPK province in Pakistan in the reasonably foreseeable future for reasons of his “race” and “religion”, that adequate state protection is not yet available to him there and that for reasons already given it would be unreasonable for him to relocate to another part of Pakistan. As noted, this decision relies on information that did not exist at the time of the previously-constituted Tribunal’s decision.

7. For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he satisfies the criterion set out in s.36(2)(a).

8. In addition, I am satisfied on the evidence before me that [the applicant] does not have a right to enter and reside in any third country such as would bring s.36(3) of the Act into play. Accordingly, I find that [the applicant] is not caught by s.36(3) of the Act.

   DECISION

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

   Luke Hardy
   Member

   
   

   ATTACHMENT A

   RELEVANT LAW

10. 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.

11. 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).

12. 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.

13. 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’).

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    
    

MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah

was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.