1801325 (Refugee)

[2020] AATA 2006

1801325 (Refugee) [2020] AATA 2006 (24 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801325

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:James Lambie

DATE:24 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 24 April 2020 at 5:32pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Shia – race – Turi Bangash tribe – communal violence – fear of Taliban attacks – kidnapping for ransom – extortion – reasonable relocation – obtaining Pakistani national identity card – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91, 423
Migration Regulations 1994, Schedule 2

CASES

Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZSRQ v Minister for Immigration [2014] FCCA 2205

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 18 December 2012 and the delegate refused to grant the visa on 21 August 2013.

3. The matter was remitted to this Tribunal by the Federal Circuit Court of Australia [in] November 2017, quashing the decision of the Refugee Review Tribunal (‘RRT’) not to grant the applicant a Protection (Class XA) visa, with an order for this Tribunal to determine according to law the application made to the RRT.

4. The applicant appeared before the Tribunal on 17 July 2019 and 30 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

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

   RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

16. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

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

    Complementary protection criterion

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

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

20. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

21. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

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

    Mandatory considerations

23. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations under the refugee criterion or on other complementary protection grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

25. The applicant claims to be a citizen of Pakistan, born in [year] (although, at the hearing, he said that it may have been in [another year]). He arrived in Australia as an unauthorised maritime arrival [in] August 2012, being detained on Christmas Island but later released on a bridging visa. He first applied for a Protection (class XA) visa on 18 December 2012.

26. The applicant claims to be a Shia Muslim born and raised in Parachinar in the Kurrum Agency of the Federally Administered Tribal Area (FATA). He claims that he and his father have been threatened by the Taliban and he fears harm in Pakistan arising from his membership of the Pashtun Shia social group from Parachinar.

27. The delegate of the then Minister for Immigration refused to grant the visa on 21 August 2013. The delegate accepted the applicant’s claims in relation to the ongoing conflict in the Kurram Agency and that he had suffered severe hardship and was fearful while living in that region. The delegate also accepted that there was a real chance that the applicant would suffer serious harm if he returned to Parachinar. The delegate considered, however that it was reasonable for the applicant to relocate elsewhere in Pakistan, outside of areas such as the FATA, the Khyber Pakhtunkhwa and Balochistan. The delegate referred specifically to Punjab province, which has been relatively free of violence.

28. This decision was affirmed by the RRT, accepting that there was a real chance that the applicant would be harmed upon his return to Parachinar. The RRT found that, despite claims made at the hearing that the applicant’s father is in a perilous financial position and has gone into debt for the cost of the applicant’s travel to Australia, it was reasonable for the applicant to relocate to another part of Pakistan. It noted that there was no evidence that the applicant would not be able to obtain employment elsewhere, having worked in [a specified] industry for several years. The RRT further found that the applicant’s mental health condition would not prevent him from obtaining employment and integrating into society in either Rawalpindi or Islamabad. Having found that there was no real chance that the applicant would be persecuted for reasons of his religion or any other Convention reason in another part of Pakistan, Australia therefore had no obligation under section 36(2)(a).

29. On appeal to the Federal Circuit Court of Australia, the court held that the RRT had erred in applying the test of a well-founded fear of persecution for the purposes of section 36(2)(a). It found that the RRT had not considered whether the harm to the applicant that it identified to be less than serious harm, or less than harm that would amount to persecution, was relevant to assessing whether it was reasonable, in the sense of practicable, for the applicant to relocate to Islamabad or Rawalpindi. It was for this reason that the matter was remitted to this Tribunal.

30. The delegate and the RRT, having accepted that there would be a real risk of harm should the applicant return to Parachinar or another part of the Kurram Agency, it was accepted for the purposes of my hearing of this matter that the applicant should have the benefit of those findings. It was therefore not necessary to rehearse the evidence and submissions at the hearing on those matters. However, for the sake of completeness and to inform my findings on the relocation and complementary protection issues, I have read and carefully considered all of the evidence presented by the applicant and all of the relevant findings by the delegate and the RRT. I have also had regard to all of the material supplied by or on behalf of the applicant since the visa application was first made and, in particular, to his statutory declarations, of which he has made an additional three for the purposes of this application.

31. In brief, the applicant describes himself as a Shia Muslim, belonging to Turi (or Turi Bangash) and Pashtun ethnicity. He claims that Turis have a long history of enmity with the Taliban and Sunni extremists. He claims to have left Pakistan because he genuinely feared harm in his hometown of Parachinar, given the nature of the threats made towards Shias generally by the Taliban and its associated groups, and as a result of continued attacks against places where Shias congregate. Previous decisionmakers accepted that the Taliban and its associated groups have waged a campaign against Shias throughout Pakistan, which is consistent with the applicant’s claims for protection. Since at least April 2007 there has been considerable violence in Parachinar between Turi Shias and members of the local Sunni Bangash tribe, which has resulted in the loss of almost 1500 lives and injury to thousands. On the basis of country information dealing with the history of conflict in the region during 2011 to 2014, the situation in the Kurram Agency, including Parachinar remains volatile. The applicant and his family, it has been accepted, have been affected by the situation on the Parachinar-Thall road and, due to their fear of being targeted they have not travelled on that road and this has resulted in the shortage of goods. There have continued to be incidents of extreme violence occurring on that road and the authorities have been powerless to prevent attacks against persons travelling on the Parachinar-Thall road.

32. For the purposes of this application, therefore, I accept the applicant faces a real chance of persecution for reasons of his religion and ethnicity if he returns to his home in Parachinar now or in the reasonably foreseeable future. I accept that the protection offered by the Pakistani authorities in the Kurram Agency is inadequate and that there is a real chance the applicant would be harmed on his return to Parachinar because he is a Shia and a Pashtun from the Turi or Turi Bangash tribe.

    Relocation

33. It is now necessary to consider whether there is a real chance that the applicant will suffer harm if he is relocated to another part of Pakistan, such as Islamabad or Rawalpindi. The relevant principles I am required to apply are those in paragraphs 15 to 17 above.

34. In the written submissions from the applicant’s representative, a large number of incidents of terrorism or other religiously motivated violence in Pakistan were cited from a range of media sources for the period 2013 to 2018. A number of these relate to attacks on Shiite Muslims, largely in the FATA and Baluchistan, but noting some rare attacks in larger cities, including Karachi and one in Islamabad. Several examples of anti-Shia sectarian kidnapping were also cited.

35. The applicant’s representative submitted that, in addition to kidnapping for ransom (which has occurred in Islamabad and Rawalpindi), Turis face the risk of extortion owing to a perception that they are wealthy and have the capacity to pay. It was submitted that if the applicant were to relocate to a larger city in Pakistan, he would face difficulties with reintegration and may well be perceived as a wealthy Turi returnee from a Western country, which would increase his risk of kidnapping.  This was said to be exacerbated by the fact that he would easily be identified as a Shia Muslim by Sunni extremists.

36. In his statutory declaration of 11 July 2019, the applicant says:

    “The Tribunal refused my application on the basis of internal relocation and I will address the issue here. I note that country situation has worsened and there is no constructive change in country’s political and security situation though there was a change of government. As a Shia I continue to engage in Shia activities and I associate with [a community organisation in Australia].”

1. At paragraph 4 of his statutory declaration, he goes on to say:

   “I fear internal relocation is not a possible option because I would be identified as a Turi Shia even if I tried to move to other areas of Pakistan and I would face practical difficulties in moving to other areas:

   ·due to my different Urdu accent, I would be identified as a person not from the local area.

   ·My Pakistani national ID has expired in 2017 and I need to obtain new computerised national ID if I were to return to Pakistan. In order to do that, I have to travel to Parachinar to obtain my Pakistani ID. It should be noted that previous Tribunal recognised that I would face serious harm in Parachinar. 

   ·I have scars in my body due to my Shia activities, and I will be identified as a Shia. 

   ·Even if I moved to other areas, I will continue to engage in Shia activities because I cannot stop my religious belief and therefore, I would be identified as a Shia person.

   · As a Pashtun, I will face severe racial discrimination and racial profiling in Pakistan and therefore, I will face practical difficulties.”

2. I discussed at some length with the applicant over both hearing days the claims he made at the second dot point at paragraph 4 of his statutory declaration. If these claims are accurate, he is saying that it is legally and practically impossible for him to return to Pakistan, or for there to be any practical means of relocation within Pakistan, because he would be obliged, in any event, to return to Parachinar to obtain his national identity card.

3. When I queried him about the procedure for obtaining a new or replacement national identity card, the applicant’s evidence was that he would be required to follow a procedure wherein he would have to present physically to an office in Parachinar to be photographed and have his identity particulars taken and verified. When asked about the source of his knowledge he said that it was from his own knowledge of the procedure, but could produce no documentary evidence. I put to him that the procedures are listed on the Pakistani National Database and Registration Authority (NADRA) website[1], he said that he was not aware of it and, in any event, did not know how to access the website or know anyone who could show him how.  The matter was pursued at the resumed hearing, during which it became clear that the applicant had made no attempt to familiarise himself with the process in the interim.  He claimed that it would cost in the region of $300 to $400 to apply (a sum which he said was beyond his capacity to pay), when country information is that the cost is in the region of $7 to $24.  It was put to him that the second dot point of paragraph 4 of his statutory declaration and his subsequent statements at the hearing had been made without any attempt to verify them and may have been made recklessly as to their truth or otherwise.

   [1]

4. The applicant sought to clarify his evidence in a statutory declaration lodged post hearing and dated 13 February 2020. At paragraph 10 he says:

   “I told the Tribunal that some friends told me that it would cost 300 to 400 [dollars] to apply for a national ID. I submit that I do not have good education and I do not have computer knowledge and I rely on people who have previously applied for the ID. I submit that I can rely on people who have applied for an ID before and submit that it is unreasonable to expect a refugee applicant like me (a person who does not have good education) to provide first-hand information for every piece of information. My understanding is, I do not need to proof beyond reasonable doubt to corroborate my evidence. It is my understanding about the application for a national ID in Pakistan. I submit that the expectation of the Tribunal in this instance is an unreasonable expectation.”

5. At paragraph 12 of the statutory declaration, he goes on:

   “Through my immigration representative, I advised the Tribunal that a person needs to attend the Nadra office in person. We provided a link as well. As a reasonable minded refugee applicant, I hope that the Tribunal would have access to link and found out that a person needs to be present in person to apply for the ID. We requested the Tribunal to send us relevant country information in its possession if the Tribunal has other country information which contradicts our assertion. The Tribunal advised that it is publicly available and advised it would not proposed to provide. The reason, we ask is that we provided country information from the Pakistani Nadra office which corroborates our assertion that in order to get computerised national identity card (CNIC) or smart national identity card (SNIC), the applicant needs to attend in person to the Nadra office and we submit that it cannot be applied for online, particularly for the first time applicants of CNIC or SNIC card application. We advised the Tribunal, since I never had CNIC or SNIC, I need to obtain a new CNIC or SNIC and therefore, I cannot get it online. I am not sure why the Tribunal does not want to send us the country information it relies on. I note that it would not cause practical injustice or unnecessary financial hardship to the Tribunal to forward us the relevant information or the link which confirms that an applicant in my circumstances would be able to apply online. In addition, in order to apply online, I understand from my immigration representative that if Pakistani person wants to renew his CNIC or SNIC first, he needs to register with the Pakistani authorities and then only he or she will be able to even apply for a CNIC or SNIC. I submit that it is unreasonable to expect a refugee applicant to approach the Pakistani authorities including registering with the Pakistani authorities. In my case first I do not have the CNIC or SNIC to renew and I need to apply for a new card and second, I should not be expected to avail the protection of the home country from which I seek protection.”

6. With his visa application, and with every stage of the review, the applicant submitted his government of Pakistan national identity card, issued [in] 2006 and expiring [in] 2017. The number of the card is replicated in his passport. This, as far as I can determine, is a CNIC, the version without the embedded computer chip.  The NADRA website states that Pakistani citizens can apply for a renewal of a NIC, CNIC, or SNIC through the Pak-Identity website[2], which is NADRA’s ‘online ID issuance system’.  In order to renew the card, an applicant must have their existing NIC, upload their photograph and fingerprints and provide the details of an attestor or verifier.  The fee for renewal ranges from PKR400 to PKR750 (AUD$3.93 to $7.37), with service fees between AUD$11.30 to $24.57 for ‘urgent’ or ‘executive’ processing. There is an ‘FAQ’ page, which explicitly provides that an expired card is dealt with in the same way as an ordinary renewal. Even where the physical presence of an applicant is required, the application can be processed at some 13 diplomatic missions worldwide and some 37 locations within Pakistan.  This information is readily accessible. The applicant’s claims in paragraph 10 of his statutory declaration have been made without any regard to this, despite having been professionally represented.

   [2] id.nadra.gov.pk

7. The DFAT country information report (20 February 2019) states: 

   To obtain a CNIC or SNIC … [a]n applicant who was previously registered and had a MNIC is only required to submit the original or a copy of their MNIC.

   All applicants seeking a CNIC for the first time are required to present themselves in person at any NADRA registration centre to support their paperwork, have their photograph taken, and provide their signature and impression of their thumb. Illiterate applicants are not required to provide schooling or age verification information. Lost or stolen CNICs can be replaced by applying for a replacement card on the NADRA website. Anecdotally, some CNIC applicants have advised that they have been required to travel to a NADRA office in the location they are domiciled, however this is not reflected in official policy as advised by NADRA.

   Applicants from the former FATA and some parts of Khyber Pakhtunkhwa and Balochistan must have their applications countersigned by a Deputy Commissioner. The impact of the 2018 FATA interim government regulation on the requirement for countersignature by Deputy Commissioners, if any, is unknown at the time of publishing [emphases added].[3]

   [3] DFAT Country Information Report, Pakistan, 20 February 2109, paras  5.53 to 5.55

8. There being no evidence presented by the applicant as to the anecdotal or uncertain requirements (travel to domicile, procedure for signature by a Deputy Commissioner), I give those matters no weight. 

9. The applicant’s complaint that the Tribunal must provide detailed information is misconceived. It was the applicant in his statutory declaration of 11 July 2019 who raised the prospect of being required to attend in person in Parachinar to obtain a new national identity card.  For the reasons given in paragraph 20, it is for the applicant to establish his claim to the satisfaction of the Tribunal.

10. In paragraph 16 of his affidavit of 13 February 2020, the applicant complains about my use of the word “reckless” during the hearing to describe his assertions as to the procedure to renew his national identity card. He goes on to say:

    “When I heard that I became very confused and it caused me to feel victimised and which further triggered my severe depression which has affected my evidence after that. The reason, there is no evidence to confirm that a person in my situation can obtain SNIC or CNIC online. It should be noted that publicly available and authentic evident establish the fact that a person of my situation cannot apply for a SNIC or CNIC online and I summarise the reasons as follows: […] I never had SNIC or CNIC and I need to apply, I should be considered as a new applicant for SNIC or CNIC.”

11. On the basis of the evidence the applicant presented to the Tribunal, in which the procedure he described appeared to have been invented as he went (for example, the fanciful figures he proposed as to the fees), and there having been no apparent attempt to collect or verify his information, I do not consider the use of the term “reckless” at the hearing to be unjustified. In any event, I have made no explicit findings as to applicant’s credit, it being unnecessary for the purposes of dealing with this claim.

12. Finally, his objection to registering for the renewal of the card, which he says is unreasonable because it requires him to approach the Pakistani authorities, is not supported by his claims. He originally only claimed to be at risk if he was to return to Parachinar. His claims were subsequently broadened to include Taliban and Sunni extremists elsewhere. His complaint about Pakistani authorities was that the protection offered by them in the Kurram agency is inadequate, and never anything to the effect that they were the agents of his persecution.

13. The remainder of the applicant’s claims that internal relocation would not be possible or practicable are that he would be identifiable as Shia, Turi (or Turi Bangash) and Pashtun by reason of his Urdu accent, that he carries scars from self-flagellation which would identify him as Shia, that he would be identifiable as Shia from his engagement in Shia religious activities, and that as a Pashtun he would face severe racial discrimination and racial profiling in Pakistan.

14. The applicant’s representatives presented submissions that violence against Shias and Pashtuns is prevalent throughout Pakistan. The independent evidence, discussed with the applicant in the hearing, is that the security situation varies significantly in different regions and that there are a number of areas within the country which remain relatively free of sectarian, racial or politically motivated violence. The great majority of the incidents cited by the applicant’s representatives relate to the FATA, the Khyber Pakhtunkhwa and Balochistan.

15. The Department of Foreign Affairs and Trade Thematic Report, Shias in Pakistan (15 January 2016) notes that:

    section 15 of the Constitution guarantees freedom of movement throughout Pakistan and there are no legal impediments to relocation. This applies equally to Shias and other religious sects. Because of Pakistan’s size and diversity, internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination and violence. In many cases, there are options for members of most ethnic and religious minorities, including Shias to relocate to areas of relative safety within Pakistan. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities. These cities also provide greater access to employment, education and health care services. For example, Turi migrants in Islamabad have told DFAT these factors were central to their decision to relocate from Kurram Agency. [4]

    [4][4] DFAT Thematic Report, Shias in Pakistan, 15 January 2016, p15

16. The Tribunal accepts that, as elsewhere in Pakistan, there continue to be attacks specifically against Shia mosques, shrines and gatherings of Shia in Rawalpindi and Islamabad. The evidence is that there remains some risk of harm throughout Pakistan, including in cities such as Islamabad and Rawalpindi, and there is evidence indicating that extremist groups have been active not only in north-western areas but also large urban areas. The DFAT Thematic Report refers to militant attacks in areas of the Punjab, while noting:

    Levels of generalised and sectarian violence remain lower in Punjab than other areas of Pakistan. Credible sources have told DFAT more recently Lahore has experienced a 20 to 25% reduction in the rate of “crime against persons”, including kidnapping …

    In 2014, there were 18 sectarian attacks in Punjab and the Islamabad Capital Territory combined resulting in 21 deaths. According to the SATP, a total of 16 Shias died in three attacks in Punjab and the Islamabad capital Territory in 2015. This included separate IED attacks on different Shia imambargahs in Rawalpindi on 9 January and 18 February 2015, and an attack on a group of Shias returning from a religious gathering in Rawalpindi on 16 January. There were no Shia deaths from sectarian violence in Lahore in 2015.

    Islamabad remains relatively safe for migrant Shia communities. According to the Turi community, for example, there has only been one attack on Turi migrants in Islamabad in the past four years: on 10 August 2013, there was an attempted suicide IED attack on a Shia imambargah in Bahra Kahu. The suicide bomber – from Punjab – was killed by guards at the imambargah while the other four perpetrators – from Sadda, Kurram Agency – were prosecuted in an antiterrorism court in September 2015

    Some Turi migrants in Islamabad have reportedly received unspecified threats from sectarian elements. According to Islamabad-based think tanks, there is a declining incidence of kidnapping for ransom incidents in Islamabad. Kidnappers have historically targeted Ahmadis and, to a lesser extent, wealthy migrants from tribal areas.[5]

    [5] DFAT Thematic Report, Shias in Pakistan, 15 January 2016, p. 11

17. The Tribunal accepts that the applicant is identifiable as Shia, Turi (or Turi Bangash) and Pashtun by reason of his Urdu accent, that he carries scars from self-flagellation which would identify him as Shia and that he would be identifiable as Shia from his engagement in Shia religious activities. However, having regard to the country information cited above and, in particular the low levels of sectarian violence in Islamabad and Rawalpindi, combined with the large number of Shia Muslims in Pakistan, the Tribunal is satisfied that the chance of the applicant being harmed in an act of sectarian or generalised violence in Rawalpindi or Islamabad is remote. Accordingly, on the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm for reasons of his Shia religion or the fact that he is Turi or Pashtun in Islamabad or Rawalpindi.  A rather generalised claim was made on his behalf that he, as a Shia, was at some elevated risk of being prosecuted for blasphemy but I have no country or other evidence to satisfy me that this is the case.

18. The Tribunal has considered the applicant’s claim that, as a Pashtun, he would “face severe racial discrimination and racial profiling in Pakistan”. The DFAT Country Report states that Pashtuns comprise an estimated 15.4% of the population of Pakistan, making them the second largest ethnic group in the country after Punjabis. It notes that the largest Pashtun communities live in Karachi, which hosts the largest population of Pashtuns in the world. There are also large communities in Islamabad and Lahore. Pashtuns are represented at all levels of society in Pakistan, historically dominating employment in the transport sector and also being well represented in the security forces. The DFAT report assesses that Pashtuns face a medium risk of official discrimination in the form of terrorism related and racial profiling by security forces in areas where they are a minority, particularly in the Punjab. I am not satisfied that the risk that the applicant faces such discrimination would heighten his risk of facing serious harm beyond that assessed at paragraph 53 above.

    Reasonableness of relocation

19. I have accepted that the applicant has a well-founded fear of persecution for a Convention reason if he is returned to the Kurram Agency and have found that, were he to relocate to Islamabad or Rawalpindi there is, objectively, no appreciable risk of the occurrence of the feared persecution. I must therefore turn to the question of whether it is reasonable, in the sense of practicable, to expect the applicant to relocate to Islamabad or Rawalpindi having regard to his particular circumstances and the circumstances he would reasonably expect to face in those cities, as well as the impact on him of being sent to either of those places.[6]

    [6] SZSRQ v Minister for Immigration [2014] FCCA 2205

20. In addition to the applicant’s circumstances considered above, he has presented evidence that he suffers from anxiety and depression, which his psychologist assesses as major depressive disorder comorbid with generalised anxiety disorder. His psychologist reports that he had been previously administered (unspecified) psychotropic medication but that this further worsened his condition. His psychologist opines that the uncertainty of the applicant’s visa status is a significant cause for the psychopathology and that the condition has gradually deteriorated. He goes on to say that he believes the applicant’s psychological health will improve once he is issued with the appropriate visa. I am concerned that, with such a serious diagnosis, the applicant does not appear to have been referred to a psychiatrist or to have been recently prescribed any medication. While I accord a degree of weight to the psychologist’s report, I cannot give it the weight that I would to an expert psychiatric report with a proper medical history. I also harbour some concern that the report leans strongly towards advocacy and the repetition of aspects of the applicant’s claims not obviously relevant to his diagnosis. That said, I have noted the diagnosis.

21. The DFAT Country Report states that basic healthcare in Pakistan is free, but of limited quality and accessibility. The quality of healthcare in the larger cities is significantly better than in rural areas. The report notes that many religious and secular charities provide emergency relief, education and health services, while tending to focus their support on the specific needs of the community or sect. It seems clear that the availability of psychiatric treatment and medication in Islamabad or Rawalpindi would be inferior to that currently available to the applicant; however, it would appear that the applicant has not sought or relied upon medical assistance of that nature to any significant extent while in Australia. His evidence is that his condition had been manageable while living in Parachinar and that he had had adequate access to medication. Given the superior health services to be expected in Rawalpindi or Islamabad to those to which the applicant had been previously accustomed, I do not consider that his health condition represents any practical barrier to relocation.

1. At paragraph 53 above I have assessed the applicant’s risk of serious harm as a result of his religion and ethnicity as remote. While noting that the levels of crime and generalised violence in Pakistan are significantly worse than in Australia, I do not consider that he faces any risk of harm (including less than serious harm) appreciably higher than any other member of the local community, whether by reason of religion, ethnicity or socio-economic factors were he to move to Islamabad or Rawalpindi.  I therefore do not consider these factors to be a practical barrier to relocation.

2. I have also considered whether his personal circumstances as a returnee from a Western country may put him at some risk of harm, including less than serious harm. DFAT “assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate.”  Given that the applicant’s reason to migrate stems from conditions in the Kurram Agency, in common with a significantly large community in Islamabad and Rawalpindi, I do not assess his risk of harm or discrimination to be appreciable and therefore no obstacle to the practicality of relocation. His representative submitted that as a Turi returnee from a Western country he might be taken as a lucrative prospect for kidnapping or extortion:  I have no evidence to suggest that the applicant faces anything other than a remote risk of such harm, or of lesser harm of a similar nature.

3. Aside from the ethnic, religious and health factors discussed above, the applicant has offered no evidence that he would be unable to pursue his livelihood in [his specified industry] or would otherwise face serious any serious economic disadvantages by relocating.

4. In all of the circumstances, therefore, I am satisfied that it would be reasonable and practicable for the applicant to relocate to Islamabad or Rawalpindi.

   Are there substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, face severe racial discrimination and racial profiling in Pakistan that there is a real risk that he will suffer significant harm?

5. I have considered the applicant’s claims, having regard to the complementary protection provisions, which require me to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm as that term is defined in subsection 91R(2). I have accepted that there is a real chance that he would face serious harm on his return to Parachinar or the Kurram Agency. I am also satisfied that there is a real risk that in those regions he would face significant harm including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

6. Section 36 (2B) provides that there is taken not to be a real risk if it would be reasonable for the applicant to relocate to an area where there would not be a real risk that he or she would suffer significant harm. For the reasons discussed in paragraphs 55 to 61, I have found that it is reasonable for the applicant to relocate to areas such as Islamabad and Rawalpindi where there is not a real risk that he will suffer significant harm. I have also not accepted that the applicant fears harm on any other basis. The Tribunal is also not satisfied that the applicant will suffer significant harm for reasons associated with his presence in Australia for a lengthy period.

7. Accordingly, the Tribunal finds that the applicant will be able to relocate to another part of Pakistan where there is not a real risk that he will suffer significant harm. Therefore, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm.

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

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

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

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Lambie
    Senior Member