1800064 (Refugee)

[2021] AATA 1223

1800064 (Refugee) [2021] AATA 1223 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800064

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Jason Pennell

DATE:16 March 2021

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 16 March 2021 at 3.54pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – race – ethnic Hazara – religion – Shia Muslim – fear of being harmed by Sunni Muslim extremists such as the Lashkar-e-Jhangvi (LeJ) –country information – DFAT Report – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559

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 on 6 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 14 September 2016. The delegate refused to grant the visa on 6 December 2017 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c)) of the Act.

3. The applicant appeared before the Tribunal on 4 March 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. As such, the hearing was held via conferencing facilities using the Microsoft Teams program.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. For the following reasons, the Tribunal has concluded the decision under review should be remitted back to the Department of Home Affairs (the Department) for reconsideration.

Criteria for a protection visa

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

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

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

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

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

Mandatory considerations

1. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Applicants Claims and evidence

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Applicants Identity

1. The applicant claims that he was born on [date] in [location], Quetta, Balochistan, Pakistan.[1]  He claims to be of Hazara ethnicity and Shia Muslim.[2]

   [1]    Protection (XA 866) visa application form declared on 15 November 2012, Department file [number], Doc ID No: [number] 

   [2]    Protection (XA 866) visa application form declared on 15 November 2012, Department file [number], Doc ID No: [number] 

2. The applicant provided a copy of the biodata page of his Pakistan Passport [Number] valid [from] 2008 [to] 2013. Furthermore, the applicant claims in his protection visa application form that the ‘smuggler took it’ when he departed from Karachi [in] May 2012.

3. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country, Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Pakistan and as such his protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively. 

Migration History

1. The applicant arrived in Australia [in] July 2012 [as] an unauthorised maritime arrival [and] has not departed since[3]. The applicant claims that prior to arriving in Australia, the applicant claims that from [date] to [May 2012] he resided in Pakistan as a citizen. He claims that prior to his departure for Australia he had never been outside Pakistan save for a pilgrimage to Iran [from] July 2008 [to] August 2008. The applicant claims that on transit to Australia he travelled to the following countries illegally:

   (a)[date] May 2012 to [date] May 2012 travelled to [Country 2].

   (b)[date] May 2012 to [date] May 2012 travelled to [Country 3].

   (c)[date] May 2012 to [date] May 2012 travelled to [Country 4].

   (d)[date] May 2012 to [date] May 2012 travelled to [Country 5].

   [3]    Department of Home Affairs - Movement Records (Mainframe) dated 21 January 2021

2. On 24 October 2012 he lodged an application for a Bridging Visa E (BVE) which was granted from 7 November 2012 to 19 December 2012[4].

   [4]    Department of Home Affairs - Integrated Client Services Environment (ICSE) records

3. On 21 November 2012 he then lodged an application for a permanent Protection (XA 866) Visa and was granted an associated BVE. On 3 February 2014 the former Department of Immigration and Border Protection (the Department) refused this permanent Protection visa application. The applicant lodged a merits review application to the former Refugee Review Tribunal (RRT) (case number 1404088) who remitted the application back to the Department for reconsideration on 25 July 2014[5].

   [5]    RRT case number 1404088

4. On 16 December 2014 the Department deemed the XA 866 Protection Visa application to be a Temporary Protection Visa (XD 785) visa application. On 14 April 2016 the applicant was granted a Temporary Protection Visa subclass XD 785 which is currently in effect[6].

   [6]    Department of Home Affairs - Integrated Client Services Environment (ICSE) records

5. On 14 September 2016 the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) subclass XE 790 which was refused by the Department on 6 December 2017. On 2 January 2018 the applicant lodged a merits review application to the current Migration and Refugee Division of the Tribunal resulting in this review application.[7]

Applicants evidence.

[7]    Ibid

1. The applicant claims that he was born on [date] in [location], Quetta, Balochistan, Pakistan.[8] He claims to be of Hazara ethnicity and Shia Muslim. He states that he can speak, read and write in Hazaragi and can speak Urdu, Dari and English.

   [8]    Protection (XA 866) visa application form declared on 15 November 2012, Department file [number], Doc ID No: [number] 

2. The applicant’s evidence was that he is not married and has no children. In addition, he states that he has no close relatives who reside in Australia. His mother, father, [and number of siblings] continue to all reside in Pakistan.

3. Prior to arriving in Australia, the applicant claims he was educated in Pakistan. He claimed that:[9]

   (a)From March 1994 to June 2006 he attended a [school] in Hazara Town, Quetta, Pakistan

   (b)From August 2004 to December 2004 he completed a [specified] course at [education provider] in Quetta, Pakistan

   (c)From August 2006 to August 2008 he attended [College 1] in [location], Quetta, Pakistan

   (d)From August 2008 to June 2010 he completed [specified] course in Hazara Town, Quetta, Pakistan

   (e)September 2009 to September 2011 he attended [College 2] in Balochistan, Quetta, Pakistan

   (f)September 2011 to April 2012 he attended university in Balochistan, Quetta, Pakistan and completed a [Qualification 1].

   [9]    Protection (XA 866) visa application form declared on 15 November 2012, Department file [number], Doc ID No: [number] 

4. In addition, since arriving in Australia, in 2017 the applicant received a scholarship from the [University 1] from which he has received a [Qualification 1] degree.   

5. The applicant claims that Pakistan he worked as follows:

   (a)From September 2009 to September 2010 he worked as a [Occupation 1] at [a] Company in Hazara Town, Ali Abad, Quetta

   (b)June 2010 to February 2012 he worked as a [Occupation 2] at [a second company] in Quetta and has been unemployed since

6. In Australia the applicant has worked as an [Occupation 3] with [Company 3].[10] In addition the applicant commenced work on a part time basis with [Company 4] on 16 October 2017.[11]

   [10]  Letter from [Company 3] dated 23 November 2017

   [11] Letter from [Company 4] dated 28 November 2017

7. The applicant’s evidence was that his family in Pakistan are heavily reliant on him for their financial support. The applicant’s evidence was that his father works [in] a [business] at which he earns approximately PKR12,000 (approximately $100.00) per month. His claims that his mother has several health problems including depression, arthritis and chronic lung disease. The applicant provided several medical certificates in support of his mother’s condition. He claims a large portion of the money he sends to his family goes to paying for his mother’s care.

8. He claims that as a since his brothers-in-law was killed by a bomb blast in the Hazara community [in] February 2013. As a result, his sister now lives with her two children with his parents adding to their financial burden. The applicant claims that since the death of his brother-in-law and due to the fact of the ongoing persecution of the Hazaras and the constant strain of living in fear, his mother’s condition has suffered.[12]   

   [12] Applicants statutory Deceleration dated 25 February 2021.

9. The applicant’s evidence was that he was a Hazara ethnicity. He claimed that as an Hazara person that he would be persecuted if he was to return to Pakistan as there was a real chance he would be seriously harmed by the Lashkar-e-Jangavi (LeJ). Consistent with his claims as detailed below the applicant claimed that there had been a series of attacks against Hazara in his local community which he had witnessed. This included an attack on 31 March 2012 in which the applicant witnessed the dead bodies being taken from a van by members of a paramilitary group on his way to college. The applicant’s evidence was because of the constant threat of violence against the Hazara population he was always afraid of being attacked. He claims the constantly changed the time he travelled to college and the route he took so that he would not become a target of a militant group. 

10. The applicant claimed that f he is returned to Pakistan there is a real chance that he will be seriously harmed by reason that he is an ethnic Hazara.

Claims for protection and other supporting documentation

1. The applicant first submitted claims for protection when he applied to the Department for protection in his Statutory Declaration dated 15 November 2012[13]. The applicant’s claims are as follows:

   [13] Protection (XA 866) visa application form declared on 15 November 2012, Department file [number], Doc ID No: [number]   

   ‘Background information:

   My name is [the applicant] and I am a [age]-year-old male born in Hazara Town, [location], Quetta, Balochistan Province in Pakistan. My ethnicity is Hazara and my religion is Shia Muslim. I am not married, and I have no children. My parents and siblings are currently residing in Pakistan.

   Why I left my home country:

   My life was in danger in Pakistan because I am Hazara and Shla. It has been twelve to thirteen years that Hazara's are genocide. There are certain religious extreme groups that threaten Hazara's and Shia's with letters by target killings and suicide bombings. The Lashkar e Jangavi and Sapih e Sahaba declare that it is them that are killing and will continue to kill Hazara Shia's all over Pakistan.

   In the last three months another militant group has emerged by the name of Jaish e Islam which is affiliated to Lashkar e Jangavi. They claim that they are the ones who are committing these bombings and target killings. These groups have segregated into every city in Pakistan to operate more effectively and quickly.

   Since I left school in Hazara Town I had to travel every day to college which is in the main city of Quetta. The routes have never been safe for Hazara's as the genocide have taken over from the suburbs to the city. It was [in] July 2011 when me and my friend were going to college on a motorbike. We had missed a massive target shooting by five minutes when we witnessed the Para­ military force taking out dead bodies from [a] van. They had blocked the roads and told us to leave the area. They told us that the area was not safe and escorted us two or three kilometers away. All the victims in the van were Hazara. There were eleven people killed and four of them injured.

   After these incidents I could not continue my studies. I could not travel on the roads because I feared that I would be targeted or killed by these groups. My facial features are easily recognizable to the other people of local tribes.

   [In] March 2012 I was coming back from College on my bicycle when I saw three local people sitting on the side of the road. They stopped me and they started punching, kicking and slapping me. They said that we Hazara's are "infidels" and Pakistan is not for Hazara's. He continued on threatening me and saying that there was an attack two days ago and we continue to travel on this road. You people don't care about your lives here and if you don’t, we don't care either. They slashed my bag and threw my bicycle on the floor. At that point my mouth was bleeding, and I was too scared to get my bicycle on the way so I left with my bag.

   I was afraid to report these people to the police authorities as they are connected with the Para­military groups. They would not protect my life and I will then suffer more consequences because I had put in a report about these Baloch people. No one has been caught till this day so no Hazara person will follow up with the attacks and report it to the police.

   [In] April 2012 my uncle was travelling in a taxi on [location] with six other Hazara passengers. They were attacked at the exit point on [location] when the Lashkar e Jangavi opened fire at them. My uncle was killed with the other passengers in the taxi. After this incident I decided to leave Pakistan because of the ongoing genocide on Hazara people.

   Why I cannot relocate:

   We have never been safe in any area in Pakistan. Wherever we go we will be targeted and killed by the Para-military groups because we are Hazara and Shia

   What I fear might happen if I go back to my home country and/or my country of former habitual residence:

   If I were to live in Pakistan I will be killed because I am Hazara Shia. I won't be alive because of the tribunal gangs who are against us and behind the genocide.

   Who I think will harm or mistreat me if I go back:

   The Lashkar e Jangavi, Sapih e Sahaba, Jaish e Islam and other unknown militants will harm me.

   Why I believe they will harm or mistreat me if I go back:

   Because I am Hazara and Shia.

   Why I believe the authorities in my home country and/or my country of former habitual residence will not protect me if I go back:

   They have never protected us and within thirteen years no one has ever been arrested. The authorities have always supported the militant groups and the genocides have never stopped.

   Why I think I will suffer significant harm:

   I am a Hazara and a Shia.

   Other matters that I would like the Department to take into account:

   On the 6th of May 2011 after the killing of Hazara's the Lashkar e Jangavi distributed and opened a threat letter to the Hazara community mentioning the ongoing genocide and saying the Hazara Shia's are infidels and we will wipe them out of Pakistan. Please find enclosed a copy of this letter”.   

32.The delegate summarised the applicant’s protection claims as follows[14]:

[14] Department decision record dated 6 December 2017, [number], Doc ID No: [number]

‘XA-PV claims

Since his arrival in Australia the applicant has provided various statements regarding his claims for protection. In his initial application for an XA-PV 866 visa, the applicant provided the following claims (in summary):

·He is an ethnic Hazara and Shia Muslim from Quetta, Pakistan and he has lived in Quetta his entire life with his parents and siblings.

·On 6 May 2011 Lashkar-e-Jangavi (LeJ) distributed a threat letter to the Hazara Shia community in Pakistan. He observed an original of these letters.

·On his way to college [in] July 2011 he witnessed members from a paramilitary group taking dead bodies out of a van. The applicant claims that these victims were shot dead approximately five minutes before he arrived on the scene. All the victims in the van were Hazara and 11 people were killed with four others injured.

·[In] March 2012 the applicant was on his way back from college on his bicycle when he was approached by three local people sitting on the side of the road. They stopped the applicant and commenced punching, kicking and slapping him. The unknown men said that 'Hazaras are infidels and Pakistan is not a place for Hazaras' and that 'Hazaras continue to travel on these roads and you people don't care about your lives then we don't care either'. They slashed his bag and threw his bicycle on the ground. He was able to escape the unknown men when a third party intervened.

·[In] April 2012 the applicant's uncle was travelling on [location], Quetta with six other Hazara passengers when the LeJ opened fire on the vehicle. His uncle and the other passengers were killed as a result of this attack.

·Since being in Australia, his brother-in-law and brother were killed in a bomb blast [in] February 2013 for which the LeJ have since claimed responsibility.

·He will be killed by the LeJ, Sapih-e-Sahaba, Jaish-e-lslam and other unknown militants because he is Hazara and Shi'a Muslim.

XA-PV primary assessment

In a XA-PV assessment dated 16 September 2013, a departmental officer found the following:

·The applicant has a well-founded fear of being persecuted for reasons of his race and religion within the reasonably foreseeable future if returned to his home area of Quetta, Balochistan Province, Pakistan and he would not have access to adequate protection from Pakistani authorities.

·Country information indicates that Hazaras and Shi'as continue to be targeted throughout Pakistan with anti-Shi'a militant groups dispersed around the country. On this basis an option for internal relocation is not available to the applicant.

As stated above, the applicant was granted a TPV10 on 14 April 2016.

SHEV Claims

The applicant’s claims for protection, including those provided at interview, and supporting evidence are contained in [Department file number]. The applicant’s claims for protection are summarised below:

·He reiterated claims raised at his XA-PV application.

·Further, since leaving Pakistan:

·The terrorist militant organisation Lashkar-e-Jhangvi has expanded. At the end of 2012, another terrorist group named Jaish-e-lslam emerged which is affiliated to Lashkar-e-Jhangvi. They also claim responsibility for the targeted killings and suicide bombings of Shias and Hazaras in Quetta. These groups have segregated into every city in Pakistan to operate more effectively.

·The situation for Hazaras in Pakistan has become even worse. Many more targeted killings, suicide bombings have been carried on Hazaras by the terrorist militant organisations Lashkar-e-Jhangvi, Jaish-e-lslam and other unknown terrorist militants groups. More than 1200 Hazaras have been killed so far and approx. 3000 Hazaras injured and/or handicapped in the genocide which is still ongoing in Pakistan.

·[In] February 2013, his brother-in-law ([Mr A]) and his brother ([Mr B]) were killed in a bomb blast [in] Hazara Town Quetta. The terrorist militant organisation Lashkar-e-Jhangvi claimed responsibility for this bombing on Hazaras in which at least 84 people were killed and more than 100 injured and/or handicapped.

·Hazaras are not safe anywhere in Pakistan because the terrorist militant organisations Lashkar-e-Jhangvi, Sipah-e-Sahaba, Jaish-e-lslam and other unknown terrorist militants are active in all parts of Pakistan and involved in the killings of Shia Muslims. His Hazara facial features make him readily identifiable as a Shia Muslim and therefore put him even at higher risk to be targeted and killed by these terrorist militant organisations.

·He will be killed by the terrorist militant organisations Lashkar-e-Jhangvi, Sipah-e-Sahaba, Jaish-elslam and other unknown terrorist militant groups because he is a Hazara and Shia Muslim.

·He will not be able to relocate within Pakistan. He will be killed because he is a Hazara and a Shia Muslim. Hazaras are not safe anywhere in Pakistan because the terrorist militant organisations Lashkar-e-Jhangvi, Sipah-e-Sahaba, Jaish-e-lslam and other unknown terrorist militants are active in all parts of Pakistan and involved in the killings of Shia Muslims. His Hazara facial features make him readily identifiable as a Shia Muslim and therefore put him even at higher risk to be targeted and killed by these terrorist organisations.

Post SHEV Interview Submission

The applicant provided an e-mail submission after the SHEV interview dated 29 November 2017 with the following attachments:

·Recent killings of Hazaras in Pakistan - news articles.

·Confirmation of service letter from [Company 4]

·Support letter from [Company 3].

·Support letter from the [University 1].

·Academic Transcript from the [University 1].

The submission confirms the applicant’s claimed employers, namely that he is currently on leave to pursue study from [Company 3], having commenced employment there on 22 July 2013 as an [Occupation 3]. And that he is currently employed part time with [Company 4] as a [position] in their [business], having commenced on 16 October 2017.

The support letter from the [University 1] provides that the applicant is [a] Scholarship holder enrolled full time in the [Qualification 1] degree at the [University 1] which commenced in 2017 and his academic transcript for the year shows a high level of achievement with the applicant obtaining either ‘Distinction’ or ‘High Distinction’ in the eight completed subjects.

The news articles provided by the applicant contain mainly reports on [s]certain violence carried out against Hazaras in Quetta in 2017.

1. The applicant clarified and elaborated on his claims in Statutory Declaration dated 25 February 2021[15] In addition, the applicant submitted the following material to the Tribunal in support of this application for review[16]:

   (a)copy of the primary notification letter and decision record from the Department dated 6 Decision 2017.

   (b)Legal Submissions dated 25 February 2021[17] addressing the reasons why the Tribunal should consider the applicant as a person to whom Australia has protection obligations pursuant to s.36(2)(a) and (2)(aa) of the Migration Act 1958 and various country research documents

copy of the notification letter and decision record from the Department dated 3 February 2014.

[15] Tribunal case number 1800064

[16] Tribunal case number 1800064

[17] Legal Submissions by [the migration agent] dated 25 February 2021

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial Direction No. 84 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the latest DFAT report on Pakistan dated 20 February 2019 (‘the DFAT Report’). The relevant parts of the DFAT Report specifically considered by the Tribunal are attached to this decision as Annexure A. 

CONSIDERATION OF Claims and evidence

Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason 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 feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[18]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[19]

   [18] s.5AAA Migration Act 1958.

   [19]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[20] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [20]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[21] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

   [21]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

5. In this case, the Tribunal found the applicant to be a witness of credit. He provided his evidence in an intelligent and knowledgeable manner being able to describe his life and experiences as an ethnic Hazara person in Pakistan and in Quetta in detail.  As such the Tribunal places great weight in his evidence.

Accepted facts

1. Based on documents provided to the Tribunal and the oral evidence provided by the applicant at the hearing the Tribunal accepts and finds that:

   (a)The applicant was born on [date] in [location], Quetta, Balochistan, Pakistan.[22]

   (b)The applicant is of Hazara ethnicity and Shia Muslim.

   (c)The applicant can speak, read and write in Hazaragi and can speak Urdu, Dari and English.

   (d)The applicant’s is not married and has no children.

   (e)The applicant has no close relatives who reside in Australia.

   (f)The applicant’s mother, father, [and number of siblings] continue to all reside in Pakistan.

   (g)The applicant was educated in Pakistan as claimed and he received a scholarship to attend the [University 1] and obtained a [Qualification 1] Degree.

   (h)The applicant worked in Pakistan:

   ·        from September 2009 to September 2010 as a [Occupation 1] for [a] company.

   ·        from June 2010 to February 2012 he worked as a [Occupation 2].

   [22] Protection (XA 866) visa application form declared on 15 November 2012, Department file [number], Doc ID No: [number] 

Applicant’s Refugee Claim

Relevant grounds

1. The applicant claims to have a well-founded fear of persecution within the scope of s.5J(1)(a) of the Act by reason of his race and an ethnic Hazara. In Calado v MIMA[23] the Court in considering the expression of ‘race’ stated that it was appropriate to consider the “popular” understanding of the term that accords with a person’s physical appearance, skin colour and ethnic origin.[24] The court stated:

   ‘There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.’

   [23] Calado v MIMA (1998) 81 FCR 450 at 455.

   [24] ibid

2. In addition, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status also refers to the expression of ‘race’ in the broadest of terms stating:[25]

   ‘68. Race, in the present connexion, has to be understood in its widest sense to         include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

   [25]   Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [68]; >

   The applicant claims that he is an ethnic Hazara. The applicant has provided documentation including his passport, his mother and father’s birth certificates, his University results and school character certificate that indicate that the applicant is from Hazara Town, Quetta. The applicant’s evidence was consistent with the country information[26] which states that the Haraza community in Quetta live in two main areas Hazara town and Mariabad. The applicant confirmed that Mariabad is at the east of Quetta and Hazara located in the west of the city.[27] The applicant described in detail the two areas including their proximity to each other and their location to the surrounding hills. As a result, based on the applicant’s evidence and the documentation provided, the Tribunal accepts and finds that the applicant is an ethnic Hazara as claimed.  As such, the Tribunal accepts that his claims fall within s.5J(1)(a) of the Act by reason of his race as an ethnic Hazara.

   [26] DFAT report @ p.27

   [27] ibid

3. In addition, the applicant claimed that he would be seriously harmed if he returns to Pakistan by reason of his religion as a Shia Muslim. An overview of the scope of ‘religion’ as a refugee ground can be found in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. In particular it states:

   The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.[28]

   [28] Handbook, above n 25 at [71]-[73].

4. Therefore, the question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy[29] and mixed marriage.  It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[30]

   [29] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.

   [30]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

5. Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[31] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[32]

   [31]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

   [32]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

6. In this case the applicant claims that as a Shia Muslim. He claims that as a Shia Hazara he has a well-founded fear of being harmed by Sunni Muslim extremists such as the Lashkar-e-Jhangvi (LEJ). The country information[33] notes that most Hazara are Shia Muslims, predominately of the Twelver Sect. Having accepted that the applicant is Hazara based on the available country information the Tribunal accepts that the applicant is a Shia Hazara as claimed. As such the Tribunal accepts that the applicant’s claims fall within s.5J(1)(a) of the Act by reason of religion.

Applicant’s well-founded fear.

[33] DFAT Report @ p.27

1. In Chan v MIEA[34] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[35]

   [34] (1989) 169 CLR 379 at 396.

   [35] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted if he returns to Pakistan.

3. However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [36]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [36]   Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: ^[37]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [37]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

1. The applicant claims that as a Shia Hazara there is a real chance that he will be seriously harmed if he is returned to Pakistan.  For the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on a subjective and an objective basis for the reasons mentioned in s.5J(1)(a) of the Act. 

Applicant as a Shia Hazara.

1. The applicant claims that as an ethnic Hazara and Shia Muslim there is a real chance that he will be seriously harmed if he was returned to Pakistan. The applicant claims that he would not have access to adequate protection from Pakistani authorities. In addition, he claims that he would not be able to relocate as he would continue to be targeted throughout Pakistan by anti-Shi'a militant groups dispersed around the country. On this basis the applicant claims that the option for internal relocation is not available to him.

2. The applicant claims that on or about 6 May 2011 the LeJ openly distributed letter threatening the Shia Hazara community in Pakistan.  The applicant described to the Tribunal the attacks he claims he witnessed by Sunni extremists on Shia Hazara while he was traveling to and from college. Consistent with the applicant’s evidence its reported[38] that Shia Hazara’s, such as the applicant, seeking education outside the enclaves of Hazara Town and Mariabad, face a high degree of discrimination and violence. In fact, its reported that in Quetta, the fear of being attacked has reached such a level amongst the Hazara community that they try and hide their identity while travelling and dealing outside their communities.[39]

   [38] DFAT Report @ p.28

   [39] National Commission for Human Rights Pakistan, Understanding the Agonies of Ethnic Hazaras @ p.10 nchr.gov.pk/wp-content/uploads/2019/01/HAZARA-REPORT.pdf

3. The incidents described the applicant included Hazaras killed by an extremist attack being removed for a van [in] July 2011. He claims that [in] April 2012 his uncle was killed by the LeJ while travelling on [location], Quetta with six other Hazara passengers.  [In] February 2013, his brother-in-law ([Mr A]) and his brother ([Mr B]) were killed by the LeJ in a bomb blast [in] Hazara Town Quetta. In addition, he claimed that [in] March 2012 he was attacked by unknown men on his bicycle Since being in Australia, his brother-in-law and brother were killed in a bomb blast [in] February 2013 for which the LeJ have since claimed responsibility. Based on the applicant’s evidence to the Tribunal, the supporting documentation provided to the Tribunal and the available country information, the Tribunal accepts that the incidents of violence occurred as claimed.

4. The country information states that Shia Hazaras face official and social discrimination in Pakistan.[40] Militant Sunni groups such the LeJ have targeted Hazaras in Pakistan for their sectarian affiliation. The applicant gave evidence that considering the incidents he had experienced he continually changed the time and route he travelled to school and University out of fear that he would be targeted by an extremist group. The applicant provided the tribunal with a description of the area in which he lived in Hazara town and was able to provide specific details in relation to the town including the location of the incidents he described. Consistent with the available country information the applicant described how both Hazara Town and Mariabad are enclaves within the city of Quetta. The applicant’s evidence was that it was dangerous for the Hazara community to leave the enclaves and even travel between the two. The available country information[41] reports that the likelihood of attack is so high in Quetta that Hazara’s are reluctant to travel outside each enclave or even between the two.

   [40] DFAT re[port @ p.28

   [41] ibid

5. The available country information[42] indicates that there is little support of the Hazara community by the security forces in Pakistan. It reports that any improvement in the security situation in Hazara Town is as a result of actions taken by the local community rather than any support by the security.[43]  As such despite a general improvement in security in Pakistan, the Hazara community continues to face a significant risk of violence.[44] DFAT Reports[45] that following a spate of attacks in 2018, the Human Rights Commission of Pakistan noted ‘an alarming spike of violence had shot through Quetta.’  Its reported that in April 2019 an attack on the Hazara community in Quetta killed approximately 20 people and injured about 48 others. In condemning the attack, the Human Rights Commission of Pakistan stated that the attack reflected a deeper sectarian problem that will not be resolved until the authorities make a concerted effort to eliminate militancy and religious extremism. It noted that the Shia Hazara have been effectively ghettoised, their movement and assembly restricted, and their ability to conduct business and everyday affairs severely compromised.[46] Its reported[47] that on 3 January 2021 Islamic State claimed responsibility for an unidentified gunmen storming into a coal mine near the town of Mach, about 50km east of Quetta, and killing 10 Hazara coal miners. The Hazara community refused to bury the dead in protest to the authority’s failure to protect them. An article as recently as February 2021 in the Hazara International reported that Hazaras have become prime targets for Sunni extremists such as the Taliban and Islamic State in both Pakistan and Afghanistan.[48]

   [42] DFAT Report @ p.28

   [43] ibid

   [44] ibid

   [45] DFAT Report @ p.28

   [46]  Human Rights Commission of Pakistan, HRCP slams attack on Shia Hazara community; hrcpweb.org/hrcpweb/hrcp slams-attack-on-shia-hazara-community/

   [47] The Economic Times, ‘Hazara killings highlight plight of Shia community in Pakistan’ by Dipanjan Roy Chaudhury dated 6 January 2021, economictimes.indiatimes.com/news/international/world-news/hazara-killings-highlight-plight-of-shia-community-in-pakistan/articleshow/80140406.cms?from=mdr

   [48] Hazara International, ‘Afghanistan-Pakistan: Hazara, Prime targets of Sunni extremists’ dated 15 February 2021.

6. The DFAT report[49] states that historically the government of Balochistan was the main employer of the Hazara population. However, as a result of their fear of harm while traveling to work the Hazara people claim that they are being denied employment. In addition, the fear of attack is so high that many Hazara will not travel for denied basic services such as food and health care. Its noted that the existing situation of Hazara community is precarious. They are facing enormous difficulties in exercising their fundamental human rights such as their right to life, freedom of movement, right to higher education, and right to participate in the earning of their daily living and access to necessities of life. The general fear of violence has led to a significant reduction on opportunities for the Hazara community. fear of violence. The enclaves created by the security situation have had a significant effect on youth employment opportunities. As a result, there are fears for their continued mental health.

   [49] DFAT Report @ p.28

7. The applicant claims that he cannot live elsewhere in Pakistan as he can be readily identified as an Hazara by his appearance. The country information notes that the Hazaras have unique facial features which distinguishes them for others. Its reported that they may originate from Gilgit, Skardu or Tibet due to their facial resemblance with the people living in those areas.[50] Its reported that they migrated from Afghanistan to Balochistan about 150 years ago. The DFAT Report[51] notes that a Hazara enclaves away for Quetta such as Karachi are unsafe and have only arisen out of a necessity to pool resources to maintain their own security. Itys notes that while living in ethnically diverse communities in Pakistan does offer some security the Hazara population still experienced discrimination and security threats.[52] The Tribunal notes that the DFA report has assessed that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. It states that they face a higher risk than other Shia Muslims as a result of their distinct appearance and to segregation. As result based on the country information the Tribunal finds that the applicant will not be able relocate to another part of Pakistan. As such it finds that there is a real chance the applicant will be seriously harmed in all areas of Pakistan.[53]

   [50] National Commission for Human Rights Pakistan, Understanding the Agonies of Ethnic Hazaras @ p.3 nchr.gov.pk/wp-content/uploads/2019/01/HAZARA-REPORT.pdf

   [51] DFAT Report @ p.29

   [52] ibid

   [53] s.5J(1)(c) of the Act

8. Its reported that Pakistan’s security situation is very poor. The state protection in Pakistan is limited by poor resources, corruption, socio-economic factors and a lack of political will.[54]  Police in Pakistan are poorly paid and have poor work conditions. High personal risks and poor resources mean that police officers often augment their salaries by bribes.[55] As a result, the Hazara community are offered little in the way of state protection. The applicant described the checkpoints for Hazara Town and Mariabad enclaves and explained that they are maintained by the Frontier Corps.[56]  His evidence was that it was not uncommon for Hazara people to be harassed and bribed at the checkpoints. The Tribunal notes that Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy.[57]  International media has reported that Hazaras fear that the security forces operating the checkpoints in Balochistan are involved in attacks against their community.[58]

   [54] DFAT Report @ p.62

   [55] DFAT Report @ p.63

   [56] DFAT Report @ p.27

   [57] ibid

   [58] ibid

9. Therefore, based on the applicant’s evidence and the available country information the Tribunal finds that as an ethic Hazara there are no effective protection measures[59] available to the applicant and as such there is a real chance he will be persecuted as Shia Hazara in areas of Pakistan. [60]

   [59] s.5J(2) and section 5LA of the Act.

   [60] s.5J(1)(c) of the Act.  

10. As a result, the Tribunal finds that as a result of being removed from Australia to Pakistan, there is a real chance that the applicant will suffer serious harm by reason of him being a Shia Hazara. The Tribunal is satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa and as the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.

11. Therefore, having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are substantial grounds for believing that, because of being removed from Australia to Pakistan, there is a real chance that the applicant will suffer serious harm as a result of him being a Shia Hazara. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is a person in respect of whom Australia has protection obligations under the Act

CONCLUSIONs

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

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

Jason Pennell

Senior Member

Annexure A

SECURITY SITUATION[61]

[61] DFAT Report @ p.18

The 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. Overall, 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. Up 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- 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). The 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). Security 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. Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti- Shia 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-Shia sectarian groups). The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. 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.

Civil Disorder and Politically Motivated Violence[62]

[62] Op Cit @ p.19

Demonstrations are common and continue to be the major source of security unrest in Pakistan. The government’s ability to maintain law and order against politically motivated violence is limited. Demonstrations often occur after Friday prayers and can be the target of terrorist attacks. In February 2017, a suicide bomber killed 13 people during a protest of approximately 400 pharmacists in Lahore.

Demonstrations relating to blasphemy and other religious issues can draw wide – and rapid - support. Large protests have also occurred over taxation, fuel, water and gas shortages.

Security Operations[63]

[63] ibid

The Pakistan armed forces (see Military and Intelligence Services) have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups (see Police, Frontier Corps and Rangers and Military and Intelligence Services). In December 2014, the APS attack (see Education) led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. The NAP ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2. Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel. In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province. Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence. In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).

Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations (see Judiciary, and Military and Intelligence Services). Nonetheless, militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces (see Military and Intelligence Services). Although counter-terrorism operations have succeeded in suppressing terrorism-related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo).

Armed Groups[64]

[64] Op Cit @ p.20

While 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-Shia sectarian groups[65]

[65] ibid

Despite 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. Hizbul 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. The 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). 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. ISIL 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. Lashkar-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 Shia. Several 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. The 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.

RACE/NATIONALITY

Pakistan is home to a number of distinct ethnic groups, divided along linguistic lines. Article 28 of the Constitution provides that ‘any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and, subject to law, establish institutions for that purpose.’ The Constitution contains specific safeguards against discrimination on various matters. Article 22(3)(b) provides that no citizen can be denied admission to a publicly-funded education institution on the grounds of race, religion, caste or place of birth. Similar provisions apply to discrimination in access to public places (Article 26) and public sector employment (Article 27). Article 25(1) states that ‘all citizens are equal before law and are entitled to protection of law.’ In practice, since partition in 1947, ethnicity has played a significant and complex role in Pakistan’s development. Conflict and natural disasters have exacerbated communal tensions and led different ethnic groups, such as Sindhis, Balochs and Pashtuns, to relocate to Karachi and other major cities. The steady migration of Pashtuns from Khyber Pakhtunkhwa and the former FATA to Karachi has reportedly contributed to violence between the armed wings of major political parties, including the Mohajir-based Muttahida Qaumi Movement (MQM, see Mutahidda Qaumi Movement), the Sindh-based Pakistan People’s Party (PPP), the Pashtun-based Awami National Party (see Awami National Party (ANP)), and the TTP. In Balochistan, separatist groups such as the BLA have targeted and killed ethnic Punjabi settlers and others as part of their campaign for independence.

Hazaras[66]

[66] Op Cit  p.27

The Hazara ethnic group, native to Hazarajat in central Afghanistan, is of Eurasian descent, rendering Hazaras visibly distinct from other ethnic groups in Pakistan. Estimates of the size of the Hazara population in Pakistan range from around 600,000 to under one million. Most Hazaras are Shi’a Muslim, predominantly of the Twelver Sect (athna asharia), although a small number are Sunni. Hazaras migrated to Pakistan from Afghanistan in the second half of the 20th century. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. While DFAT is not able to provide detailed reporting on Balochistan based Hazaras who reside outside of Quetta, the overall security situation outside of Quetta is more severe than within Quetta (see Security Situation). Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack. Shi’a Hazaras have faced official and societal discrimination in Pakistan. Militant Sunni groups such as LeJ (see Security Operations) have targeted Hazaras in Pakistan for their sectarian affiliation. The Hazara community in Quetta lives in two main areas, Hazara town and Mariabad: Mariabad is located to the east of Quetta near the Pakistan air force base, and Hazara town to the west, near the cantonment and the Benazir hospital. The government provides some security to Hazara enclaves. The paramilitary Frontier Corps (see Police, Frontier Corps and Rangers) maintains checkpoints on roads leading to Hazara town in Quetta, and search people on entry and exit. Sources report Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy. International media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community. Government forces also provide security for Shi’a religious processions (see Shi’a). Local sources attribute much of the improvement in the security situation for Hazaras, including in Hazara Town and Mariabad in Quetta, to measures taken by the community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups. Local sources claim the Quetta police have released individuals accused of killing Hazara in the military cantonment in Quetta. Although improved security measures by the community and general improvements in the security situation in Pakistan have led to a steady decrease in successful attacks, a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan. Following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018, the independent HRCP issued a statement highlighting ‘the alarming spike in violence that has shot through Quetta.’ The HRCP raised ‘extreme concern over the continuing violence in Quetta - much of which systematically targets members of religious minorities - and the lack of an effective and sustained response from the state.’ An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shi’a in Quetta. Local sources consider the road from Quetta airport to the city and Double Road to be dangerous for all travellers, regardless of ethnicity. Local sources, including from the Hazara community, consider Giant Road to be dangerous for both Hazaras and Frontier Corps. Militants have targeted Shi’a pilgrims on the road through Balochistan during pilgrimage to Iran and Iraq and Hazara Shi’a are easier targets because of their distinctive appearance. Local sources claim that government security for Shi’a undertaking religious pilgrimage (see Shi’a) is more readily available for non-Hazara Shi’a, and the government provides escorts for Hazaras only every couple of months. Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves. Historically, the government of Balochistan was the main employer of Hazaras in Quetta. Hazaras now decline jobs for fear of movement. Hazaras claim they are denied private employment opportunities on the basis that they cannot travel safely to work in the city. Hazara youth, like other young people in Pakistan, need to move for employment. Many Hazaras in Quetta provide services to their own community within their enclaves; others attempt to move to other cities across Pakistan to work. Hazaras claim that there are two government colleges within the enclaves, open to all children, offering the equivalent of Australian year six to 12, and that no universities are located in the enclaves. DFAT is unable to verify these claims. Hazaras seeking education outside the enclaves face a high risk of discrimination and violence. The high frequency of attacks against Hazaras, such as on 4 October 2016 when a gunmen attacked a bus in Quetta, killing at least four Hazara women, have led many education and health facilities in Quetta to deny Hazaras access to transportation or attendance, in order to protect non-Hazaras clients and students. Many Hazaras now refuse to take the bus to attend university outside of Hazara enclaves due to increased fear in the wake of attacks on transportation. Hazaras claim that Hazara town has one hospital and one government hospital clinic, both staffed by Hazara doctors. Members of the community who can afford it travel to Karachi for treatment; those who cannot risk the journey for treatment in Quetta outside Hazara enclaves. Hazaras claim a private charity ambulance provides emergency transport in and out of Hazara town, but abductions of ambulance workers have led Hazaras to fear travel in the ambulance. DFAT is unable to verify these claims. Hazara youth understand the risks of illegal migration, but are increasingly frustrated by the security situation. The enclaves have limited entertainment options. Community leaders are concerned that long-term exposure to security threats is creating psychological issues for Hazara youth. Hazaras claim access to services, including mobile SIM cards and internet connections, within the enclaves does not require formal documentation, such as a passport or CNIC (see Documentation). However, travel in and out of, or between, the enclaves, involves document checks that can serve to block access to services. While most Hazaras in Pakistan can obtain formal identification such as CNICs, Hazaras claim the National Database and Registration Authority (NADRA) officials have at times caused delays for Hazaras applying for official documentation. Hazaras have suffered lethal attacks outside the NADRA office in Quetta, located outside the enclaves, while trying to obtain passports and CNICs. As a result, many Hazaras do not feel safe leaving the enclave to apply for documentation. Hazara children born in Pakistan are entitled to Pakistani citizenship. Hazara arrivals from Afghanistan typically do not have citizenship, but have access to immigration cards, which provide some rights such as access to drivers’ licences (see Afghan Refugees). Notwithstanding the risk of obtaining documentation, Hazaras that can afford to leave Quetta do so. Outside Balochistan, Hazaras report finding it safer to live separately amongst the general community than to relocate to live near other Hazaras, where they can be easily profiled and targeted. Hazaras’ preferred options for internal relocation are, in order, Lahore, Karachi and Islamabad. Hazaras report that the few Hazara enclaves in Karachi, such as Mungo Pir, are unsafe and have only arisen out of necessity where poorer Hazaras have had to pool resources. While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats. Some Hazara members of the military employ measures to reduce their profile, such as varying daily travel routes and times, changing vehicles and avoiding the use of military vehicles. DFAT is aware of reports that NADRA officials have refused to amend CNICs of Hazaras attempting to relocate within Pakistan, thus preventing them from applying for a passport, which must be obtained at the place of residence. Hazaras who have a high-level advocate can overcome such official barriers. NADRA refusal to change a CNIC address can also limit access to education, as school enrolment also requires local residence. DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves in Quetta do not face societal discrimination. Outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and/or formal official discrimination. DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation. Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence. Due to this risk, DFAT assesses undocumented Hazaras living in Balochistan are likely to experience difficulty travelling outside of Quetta-based enclaves to gain access to official documentation, or government health and education services.

While DFAT assesses Hazaras do not typically require official documentation to access non- government, Hazara community-run health and education services located within Quetta-based enclaves, DFAT notes Hazaras describe these facilities as basic, and thus travel outside of the enclaves is required to access government-run primary health, emergency care and education services.

RELIGION

Article 20 of the Constitution provides that ‘subject to law, public order, and morality, —(a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’. Article 36 guarantees ‘the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services’. The Constitution establishes Islam as the state religion (Article 2). Articles 41(2) and 91(3) of the Constitution require that the president and the prime minister be Muslim. Article 260 of the Constitution defines the term ‘Muslim’, and explicitly excludes from that definition several groups, including Ahmadis. In 1979, then-president and General Zia ul-Haq, introduced The Offence of Zina (Enforcement of Hudood) Ordinance, 1979, otherwise known as the ‘Hudood Ordinances’, prohibiting consumption of alcohol, sex outside marriage, and pornography. Non-Muslims are exempt from the alcohol ban. The other provisions apply to both Muslims and non-Muslims, but the testimony of a non-Muslim person is accepted only where the accused is also not Muslim. The provisional results of the 2017 national census recorded that Muslims comprise 96.28 per cent of the population, of whom approximately 85 to 90 per cent are Sunnis and 10 to 15 per cent Shi’a, Christians comprise 1.59 per cent, Hindus 1.6 per cent, Ahmadis 0.22 per cent and others (including Sikhs, Parsis (Zoroastrians), Baha’i and Buddhists) 0.32 per cent. Many religious minority groups have told DFAT these numbers are inaccurate, and minority groups (most notably Christians) are larger than the data indicates. Around 60 per cent of the Sunnis adhere to the Barelvi school, with a significant minority (around   35 per cent) following the Deobandi school. While both groups follow the same basic principles of Islamic theology (the Hanafi school), Deobandis have a more orthodox and conservative interpretation. A smaller number of Sunnis (around five per cent) follow the Ahl-e-Hadith (Salafi) school. According to the International Crisis Group, most Sunni militant groups in Pakistan claim to follow a form of Deobandi or Salafi Islam, including TTP, Jaish-e Mohammad and LeJ. Most Shi’a in Pakistan follow the Twelver (athna ashariya) school, with smaller numbers of Nizari Ismailis, Daudi Bohras and Sulemani Bohras. Most of Pakistan’s ethnic, linguistic and tribal groups include followers of Shi’a Islam. Sufism, a mystical interpretation of Islam involving saint and shrine devotion, is widespread in South Asia, including Pakistan. Many Shi’a and Barelvi Sunnis in Pakistan venerate Sufi saints and shrines. Sufi places of worship have been common targets for sectarian attacks. Such attacks include an attack in February 2017 on the Lal Shabaz Qalandar shrine in Sindh province, which killed more than 80 people, and an ISIL-claimed suicide attack in October 2017 on a Sufi shrine in Balochistan, which killed 18 people and injured 27. Sufism is practiced openly, and shrines are plentiful and visible. Until the 1980s, Pakistanis were less divided along sectarian lines than by ethnic, tribal and linguistic differences. However, in 1984, then-president Zia ul-Haq issued Ordinance XX of 1984 (pronounced Ordinance 20) prohibiting Ahmadis from self-identifying as Muslims (see Ahmadis). While some Shi’a supported Ordinance XX, some Sunni groups called for the government to extend the prohibition to Shi’a. The promulgation of the zakat, a compulsory religious tax based on Sunni law, inflamed sectarian tensions further, although Shi’a were later exempted from paying the zakat. A wide range of local and international commentators reported growing religious intolerance in 2018. Political leaders are reluctant to speak against religious discrimination, and those who have spoken have faced violence (see Blasphemy). During the 2018 election campaign, political discourse became more religious, exacerbating the gap between the religious majority and minorities. Religiosity is also increasing among Pakistan’s youth. The 2018 annual report of the United States Commission on International Religious Freedom (USCIRF), which designated Pakistan as a ‘country of particular concern’, observed increased incitement in the media of intolerance against religious minorities. USCIRF found the government failed to provide adequate protection to religious minorities and itself perpetrated systematic and egregious violations of religious freedom. USCIRF observed that religious minorities in Pakistan, including Hindus, Christians, Sikhs, Ahmadis and Shi’a Muslims, continued to face societal discrimination and attacks from extremist groups. USCIRF also expressed concern about the impact on religious minorities of the entry of some fundamentalist religious parties into the political arena ahead of the 2018 elections. Some local groups, noting the ambivalent position of the military, share these concerns. While there has been a declining trend in sectarian violence since 2014, the Pakistan Institute for Peace Studies (PIPs) recorded at least six terrorist attacks deliberately targeting religious minorities in 2017, killing 13 and injuring 57 people. Four of these attacks targeted the Ahmadi community across three cities in Punjab, and one, claimed by ISIL, targeted the Christian community in Quetta. PIPS reported five incidents of faith-based mob violence in 2017 (see Blasphemy). DFAT assesses, with the exception of the Ahmadi and Hazara communities (see Ahmadis and Hazaras), Pakistanis are generally able to practise their religion without official interference or discrimination. However, DFAT notes a trend of increased religious conservatism and intolerance towards religious minorities in Pakistan, which is likely to continue in 2019. Most religious minorities (with Ahmadi and Hazara exceptions noted above) face a moderate risk of societal discrimination and violence targeting religious ceremonies and places of worship. However, DFAT assesses that the risk of violence and societal discrimination based on religion varies across different groups and locations within Pakistan (see Shi’a, Ahmadis, Christians and Hindus). DFAT assesses sectarian violence disproportionately affects religious minorities in Pakistan (see Armed Groups).

Shi’a

3.90 Pakistani Shi’a live throughout the country in urban centres, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. While Shi’a are not a majority in any of Pakistan’s four provinces, they are a majority in the autonomous region of Gilgit-Baltistan.

Significant numbers of Shi’a live in Peshawar, Kohat, Hangu and Dera Ismail Khan in Khyber Pakhtunkhwa; in Kurram and Orakzai districts in the former FATA; in and around Quetta and the Makran coastline in Balochistan; in parts of southern and central Punjab; and throughout Sindh. Although some Shi’a live in enclaves in these cities (see Hazaras and Turis), Shi’a and Sunni communities are generally well integrated. Most Pakistani Shi’a are not physically or linguistically distinguishable from Pakistani Sunnis. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a Muslims. Some Shi’a may be identifiable by common Shi’a names such as Naqvi, Zaidi and Jafri. Similarly, ethnic and tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, and significant numbers of Bangash are Shi’a. Shi’a in Pakistan are most prominent during Shi’a religious events and pilgrimages to Iraq and Iran. Shi’a commemorate the Day of Ashura with re-enactments of the martyrdom and processions, during which Shi’a men and women dressed in black parade through the streets slapping their chests and chanting. Self- harm, such as flagellation performed during Ashura processions, can leave permanent marks. Shi’a and Sunni mosques are clearly distinguishable. Shi’a mosques and places of worship, or imambargahs, feature different Muslim iconography, including the Shi’a sword, horses, images of Ali and Hussein, and ‘U-shaped’ crescent moons. Shi’a and Sunni mosques have different prayer times, and worshippers use different hand positions while praying. Shi’a mosques are located throughout Pakistan. Shi’a can pray in Sunni mosques and vice versa, although this rarely happens. Both sects share a number of famous religious sites, including Sufi shrines. No legal barriers prevent marriage between Shi’a and Sunnis in Pakistan. While marriages do occur, Sunni-Shi’a marriages are becoming less common in an environment of increasing religiosity. One partner (typically the bride) usually undergoes religious conversion. DFAT is not aware of forced conversions between sects. DFAT has no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector. However, some Shi’a perceive discrimination against Shi’a gaining roles at higher levels of some organisations. Overall, DFAT assesses that Shi’a who are not Hazara or Turi (see Hazaras Hazarasand Turis) generally do not face discrimination based on their religious affiliation when seeking employment. Low-level anti-Shi’a discrimination does occur at the community level, and can manifest in violence or damage to property. Sunni and Shi’a students attend the same public and private education institutions. Students must declare their religious affiliation for entry into both public and private institutions, including universities. Religious bias in public education predominantly affects non-Muslims, but Shi’a groups have raised concerns that the public school syllabus and prescribed textbooks contain depictions of Sunni prayer rituals, and omit prominent historical Shi’a figures. Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation. Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties (see Security Situation). Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non- believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus. The LeJ (see Armed Groups) has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta (see Hazaras) and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’ According to the SATP, 114 Shi’as were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with the ISIL, claimed responsibility for many of the attacks. Travel in parts of Pakistan is dangerous for all travellers, regardless of sectarian, religious or ethnic affiliations. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure. Travellers in remote areas of Pakistan, notably Balochistan, Khyber Pakhtunkhwa and districts in the former FATA, are also at greater risk of criminal or militant violence due to their isolation and the limited presence of security forces. Many roads fit this profile. Shi’a in Pakistan often travel to Iran and Iraq for religious pilgrimage. Militant groups have historically targeted routes used by Shi’a pilgrims, particularly through Balochistan. In 2014, militants attacked a bus on the Quetta-Taftan highway in Mastung District, Balochistan, killing at least 29 Shi’a pilgrims and injuring 35. Militants identify Shi’a by Shi’a names displayed on CNICs, or flagellation marks from Ashura ceremonies. Hazara Shi’a are more readily identifiable due to their distinctive physical appearance (see Hazaras). Shi’a pilgrims can travel by air rather than by road, but many cannot afford to do so. DFAT understands that the Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. Military escorts can be infrequent. DFAT assesses that Shi’a pilgrims travelling by road to Iran through Balochistan without military escort face a moderate risk of violence from sectarian militants. Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups (see Hazaras and Turis). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.

Anti-Shi’a violence

Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests. The NAP (see Security Operations) and the highly visible presence of the paramilitary Rangers, have led to a significant decrease in violence, including sectarian violence. Sunnis and Shi’a live throughout the city, although concentrations of Shi’a, particularly Harazas (see Hazaras) can be found in Abbas Town, Hussain Hazara Goth, Mughal Hazara Goth, Rizvia, Ancholi, DHA Gizri, Pak Colony and Manghopir. According to the SATP, at least two sectarian attacks targeted Shi’a in Sindh province in 2017, resulting in  at  least  90  deaths,  while  one  attack  causing  one  death  occurred  between  1 January  and  6 May 2018. DFAT assesses that a low level of sectarian-motivated violence in Karachi exists within the context of a moderate level of overall violence. The sustainability of recent security force efforts to reduce violence in Karachi is not yet clear. 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. Balochistan has historically suffered from ethno-sectarian tensions and politically motivated violence, including violence from an active separatist movement. There is a large Hazara Shi’a population in Quetta, the provincial capital, which has historically been a target for sectarian violence (see Hazaras). Militants also target Shi’a travelling through Balochistan to the Iranian border (see Shi’a). The number of casualties from sectarian violence in Balochistan has fallen since the introduction of the NAP and Operation Zarb-e-Azb (see Security Operations). According to the SATP, six incidents of sectarian violence in Balochistan in 2017 killed 38 people and injured 37, and four incidents of sectarian violence between 1 January and 6 May 2018 killed six people and injured two. DFAT assesses that Balochistan has a low level of sectarian violence, within the context of a moderate level of overall violence. Shi’a do not face a higher risk of violence because of their sectarian affiliation, with the exception of the visually distinct and geographically segregated Hazara Shi’a who face higher risk (see Hazaras). The population of Khyber Pakhtunkhwa is mostly Pashtun and predominantly Sunni. Most Shi’a live in Hangu, Kohat, Peshawar and Dera Ismail Khan. Most Shi’a in Peshawar are long-term residents of the Old City, while many Shi’a in Hangu, Kohat and Dera Ismail Khan are Turi or Bangash Shi’a from Kurram and Orakzai agencies. Similar to other parts of Pakistan, Khyber Pakhtunkhwa has seen a significant reduction in militant violence in recent years. According to the SATP, one incident of sectarian violence in 2017 killed three people, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. Overall, DFAT assesses that Khyber Pakhtunkhwa has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province. Most Shi’a in districts in the former FATA live in Kurram and Orakzai agencies. Shi’a comprise around 40 per cent of the population of Kurram Agency; Upper Kurram Agency is estimated to be around 80 per cent Shi’a, while central and lower Kurram Agency is majority Sunni. Most Shi’a in Kurram Agency are from the Turi tribe, particularly in Parachinar (see Turis). The Bangash tribe is around 40 per cent Shi’a, and lives mainly in Orakzai Agency as well as parts of Khyber Pakhtunkhwa such as Kohat, Hangu and Peshawar. Despite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal. According to the SATP, two incidents of sectarian violence in the former FATA in 2017 killed 92 people and injured 300, while no incidents of sectarian violence occurred between 1 January and 6 May 2018. In 2017, militants carried out several attacks in the Shi’a-majority city of Parachinar.

·On 21 January 2017, a bomb exploded in a crowded market, killing 25 people and injuring dozens more. Lashkar-e Jhangvi (LeJ) and the TTP claimed responsibility, saying they were responding to the death of LeJ leader Asif Chotu and support by Shi’a for Syrian president Bashar al-Assad. According to Pakistani news outlets, this was the fourth time militants had targeted the same area of Parachinar in recent years.

·On 31 March 2017, a suicide attack on a Shi’a imambargah killed at least 24 people and injured 100.

Jamaat-ul-Ahrar claimed responsibility.

·On 24 June 2017, two bombs detonated in a market busy with people preparing for Eid celebrations, killing 72 people and injuring more than 200. LeJ Al-Alami claimed responsibility for the attack.

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

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.

4. COMPLEMENTARY PROTECTION CLAIMS

ARBITRARY DEPRIVATION OF LIFE

Reports of both militants and security forces carrying out extra-judicial killings and enforced disappearances are regular and common. Such reports became more frequent during Operation Zarb-e-Azb and Radd ul-Fasaad, and continued in 2018. In addition to deaths attributable to Pakistan security forces and insurgent, sectarian and criminal groups, US military drone strikes targeting the Haqqani Network, TTP and ISIL killed 30 and injured four suspected militants in the former FATA in 2017. The Bureau of Investigative Journalism estimates that 430 US military drone strikes in Pakistan killed up to approximately 4026 people (including up to 969 civilians) between 2004 and December 2018.

Extra-Judicial Killings

Article 9 of the Constitution provides that ‘no person shall be deprived of liberty save in accordance with law’. Under Article 3 (1) and (2) (a) of the Protection of Pakistan Act (2014), officers in the security forces can lawfully shoot on sight a person who is committing or is likely to commit a ‘scheduled offence’ (such as bombings or killings committed as an act of insurrection against Pakistan, cyber and internet crimes, and crimes against ethnic, religious and political groups or minorities). They may also shoot on sight to prevent death or grievous hurt, provided the decision to shoot is a last resort and does not cause more harm than is necessary. Pakistan’s police forces do not publish statistics on the number of ‘police encounters’, many of which are fatal. Human Rights Watch claims police often set up ‘encounter killings’. The 2017 HRCP annual report says the practice of extra-judicial killings in the form of ‘police encounters’ has become institutionalised, occurs with impunity, and is viewed by police as an effective and legitimate way of dispensing justice. The HRCP reports 2095 ‘police encounters’ occurred between 2013 and March 2018, of which 85 encounters occurred in 2018. The 85 incidents in 2018 resulted in 50 deaths, 31 escapes, two FIRS and four formal arrests. HRCP estimates more Pakistanis died in incidents described by law enforcement agencies as ‘encounters’ than in either gun violence or suicide attacks in 2017: 495 people died in such encounters compared with 399 killed by gun violence, 298 by suicide attacks, and 144 by bomb explosions. In 2016, the US State Department also reported evidence of extra-judicial killings by security forces across Pakistan.

TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Article 14(2) of the Constitution prohibits the use of ‘torture for the purpose of extracting evidence’. Pakistan ratified the UN Convention Against Torture in 2010. However, Pakistan has not yet passed legislation criminalising torture nor providing for punishments for the perpetrators of torture. Reports of the security forces, including the intelligence services, torturing people held in their custody are widespread. On 12 May 2017, the UN Committee against Torture reported in its concluding observation on Pakistan that it found widespread practice of torture by police, the military, and intelligence agencies, particularly to obtain confessions. The Commission found evidence that the military, paramilitary and intelligence (see Police, Frontier Corps and Rangers, and Military and Intelligence Services) had used torture without facing punishment, and expressed concern that extra-judicial executions and enforced disappearances may also have involved torture. The Committee reported inadequate investigation of reports of torture by the state, military, paramilitary and security services. It noted that counter terrorism legislation, particularly the Anti-Terrorism Act, eliminated legal safeguards against torture contained in other legislation relating to persons deprived of their liberty In October 2018, five police officers were suspended from service following post-mortem confirmation that they had tortured a man, Ghulam Murtaza, while in detention. Police denied the allegations, and said Murtaza, taken into custody in connection with a kidnap case, had suffered a cardiac arrest. In May 2016, Aftab Ahmad, a member of MQM, died in the custody of the paramilitary Rangers in Karachi. Authorities initially attributed his death to a heart attack; photos later emerged of his body showing signs of severe beating. The Director General of the Rangers admitted that Ahmad had been tortured in the Rangers’ custody. Five Rangers were suspended pending the outcome of an inquiry into the incident. According to the Asian Human Rights Commission, around 80 per cent of prisoners in police custody were tortured in 2015. Reports of sexual abuse are widespread, including claims that prison guards have sexually abused a large proportion of female prisoners. Under the Hudood Ordinances, individuals accused of theft, alcohol consumption or sex outside of marriage may be sentenced to flogging, whipping, death by stoning, or having limbs amputated. However, DFAT understands stoning has never been officially utilised since its legislative introduction in 1990. Militants and community-based traditional justice systems (jirgas and panchayat) administer punishment for offences such as spying, theft, adultery and perjury (see Women and Political System). Jirgas are commonly used in tribal and rural areas. Punishments can include death by stoning, amputations, and ‘blackening’ of faces with ink as a form of public humiliation.

STATE PROTECTION[67]

[67] DFAT Report @ p.62

Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will. Despite measures introduced to curb violence across the country under the NAP—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

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cruel or inhuman treatment or punishment means an act or omission by which:

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

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

but does not include an act or omission:

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

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5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

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1. Protection visas – criteria provided for by this Act

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1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

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

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

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

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

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

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

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

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

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

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

…